Empathy List Archives

JZ

Justin Zinzow

Mon, Jun 15, 2015 8:47 PM

Good afternoon: We have run across an interesting issue. I will start by framing the issue and would appreciate any insights those on this distribution list can provide. This might also be an area ripe for legislative clarification.

The Issue: When a 713.346, Florida Statutes action is brought by a subcontractor against a general and the court fails to hold the summary hearing but finds at trial that the general had a bona fide dispute (but then also found the general breached the contract), is the general who withheld payment because of the bona fide dispute entitled to prevailing party fees under 713.346?

We have been engaged as counsel following a trial loss by our client's former trial counsel. The complaint which commenced the lawsuit was brought by a subcontractor against the general. It contained a count under 713.346, Florida Statutes over allegedly undisputed sums, and a count for breach of contract.

The Judge never held the summary hearing required by 713.346. Instead, the Judge let everything go to trial. The court found that the sums were disputed by the general and that it was a close call, but ultimately ruled in favor of the subcontractor on both counts. It appears the Judge erred in ruling for the subcontractor on 713.346 because the sums were disputed.

Who should be entitled to fees, if anyone, under 713.346?

In Astaldi Const. Corp. the Fifth District Court of Appeal, interpreting section 255.071, Florida Statutes (materially similar to 713.346), held that 713.346 does not provide a mechanism for relief as to disputed sums and indicated that disputed sums must go to trial. The issue of prevailing party attorney's fees was not mentioned in the decision, but the court was clearly differentiating between disputed and undisputed claims.

Logic and fairness would suggest that 713.346 provides prevailing party fees to a subcontractor only if withheld sums are undisputed. By doing so it would act as a penalty to a wrongdoer and as a deterrent to future would-be wrongdoers. But is the reverse also true? If a subcontractor brings a claim under 713.346 knowing the sums are disputed, is the general entitled to prevailing party fees when the court determines the amount was, in fact, disputed?

The statute is unclear as to the fee issue. It provides that "The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney's fee, at trial and on appeal." Why is trial mentioned? As per Astaldi, there is a distinction between an undisputed sums claim that does not go to trial, and a disputed claim which does. Does the statute mention trial and appeal to indicate the court levels, as opposed to an actual trial?

Justin R. Zinzow
Board Certified in Construction Law
Zinzow Law, LLC
35111 U.S. Highway 19 North
Suite 302
Palm Harbor, FL 34684
Phone: (727) 787-3121
Fax: (727) 787-3231
www.zinzowlaw.com http://www.zinzowlaw.com/

Good afternoon: We have run across an interesting issue. I will start by framing the issue and would appreciate any insights those on this distribution list can provide. This might also be an area ripe for legislative clarification. The Issue: When a 713.346, Florida Statutes action is brought by a subcontractor against a general and the court fails to hold the summary hearing but finds at trial that the general had a bona fide dispute (but then also found the general breached the contract), is the general who withheld payment because of the bona fide dispute entitled to prevailing party fees under 713.346? We have been engaged as counsel following a trial loss by our client's former trial counsel. The complaint which commenced the lawsuit was brought by a subcontractor against the general. It contained a count under 713.346, Florida Statutes over allegedly undisputed sums, and a count for breach of contract. The Judge never held the summary hearing required by 713.346. Instead, the Judge let everything go to trial. The court found that the sums were disputed by the general and that it was a close call, but ultimately ruled in favor of the subcontractor on both counts. It appears the Judge erred in ruling for the subcontractor on 713.346 because the sums were disputed. Who should be entitled to fees, if anyone, under 713.346? In Astaldi Const. Corp. the Fifth District Court of Appeal, interpreting section 255.071, Florida Statutes (materially similar to 713.346), held that 713.346 does not provide a mechanism for relief as to disputed sums and indicated that disputed sums must go to trial. The issue of prevailing party attorney's fees was not mentioned in the decision, but the court was clearly differentiating between disputed and undisputed claims. Logic and fairness would suggest that 713.346 provides prevailing party fees to a subcontractor only if withheld sums are undisputed. By doing so it would act as a penalty to a wrongdoer and as a deterrent to future would-be wrongdoers. But is the reverse also true? If a subcontractor brings a claim under 713.346 knowing the sums are disputed, is the general entitled to prevailing party fees when the court determines the amount was, in fact, disputed? The statute is unclear as to the fee issue. It provides that "The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney's fee, at trial and on appeal." Why is trial mentioned? As per Astaldi, there is a distinction between an undisputed sums claim that does not go to trial, and a disputed claim which does. Does the statute mention trial and appeal to indicate the court levels, as opposed to an actual trial? Justin R. Zinzow Board Certified in Construction Law Zinzow Law, LLC 35111 U.S. Highway 19 North Suite 302 Palm Harbor, FL 34684 Phone: (727) 787-3121 Fax: (727) 787-3231 www.zinzowlaw.com<http://www.zinzowlaw.com/>

GM

Gibbons, Michael

Mon, Jun 15, 2015 10:35 PM

Good issue. Couple comments:

   Did the Court decline to hold the evidentiary hearing despite a clear statutory requirement to hold one or did the plaintiff fail to schedule the hearing with the Court?   I suspect the latter especially if there was a breach of contract claim where the parties may have been focusing their attention.  I don't see a circuit court judge unilaterally scheduling an evidentiary hearing on such a complaint in the absence of a party bringing it to court's attention and scheduling it.

   With respect to the evidentiary hearing vs. reference to "trial" later in the statute, I don't believe that the evidentiary hearing functions as the sole adjudicatory procedure in an action filed under Fla. Stat. s. 713.346.  The early evidentiary hearing  is expressly offered as a  means by which the plaintiff might qualify for some extraordinary prejudgment remedies such as a "temporary injunction" or "prejudgment attachment".  The evidentiary hearing doesn't mean that there is no later trial of an action filed under this statute; it just provides an evidentiary and procedural basis for the issuance of the extraordinary "prejudgment" relief spelled out at subsection (4).

   In order to prevail in this statutory action, I believe it is incumbent on the plaintiff to both plead and prove the existence of an "undisputed obligation" due from defendant to plaintiff.  That's a high bar and for this reason this statutory action seems to be rarely invoked.  Subsection (4) appears to expressly require proof  of "each allegation of the complaint" which would include the allegation of an undisputed debt.  If plaintiff fails to prove the existence of the undisputed debt, then Plaintiff would not prevail in the action and defendant would appear to be entitled to recover prevailing party attorney's fees.

   The combination of the high bar of pleading and  proving undisputed debt with the risk of plaintiff being obligated to pay defense atty's fees is enough to keep most practitioners from invoking this statute.

Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

    [cid:image003.jpg@01D0A79A.0D7D44E0]

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow
Sent: Monday, June 15, 2015 4:47 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Payment of "Undisputed Sums" which the court Ultimately finds to be disputed--Remedy & Prevailing Party Fees

Good afternoon: We have run across an interesting issue. I will start by framing the issue and would appreciate any insights those on this distribution list can provide. This might also be an area ripe for legislative clarification.

The Issue: When a 713.346, Florida Statutes action is brought by a subcontractor against a general and the court fails to hold the summary hearing but finds at trial that the general had a bona fide dispute (but then also found the general breached the contract), is the general who withheld payment because of the bona fide dispute entitled to prevailing party fees under 713.346?

We have been engaged as counsel following a trial loss by our client's former trial counsel. The complaint which commenced the lawsuit was brought by a subcontractor against the general. It contained a count under 713.346, Florida Statutes over allegedly undisputed sums, and a count for breach of contract.

The Judge never held the summary hearing required by 713.346. Instead, the Judge let everything go to trial. The court found that the sums were disputed by the general and that it was a close call, but ultimately ruled in favor of the subcontractor on both counts. It appears the Judge erred in ruling for the subcontractor on 713.346 because the sums were disputed.

Who should be entitled to fees, if anyone, under 713.346?

In Astaldi Const. Corp. the Fifth District Court of Appeal, interpreting section 255.071, Florida Statutes (materially similar to 713.346), held that 713.346 does not provide a mechanism for relief as to disputed sums and indicated that disputed sums must go to trial. The issue of prevailing party attorney's fees was not mentioned in the decision, but the court was clearly differentiating between disputed and undisputed claims.

Logic and fairness would suggest that 713.346 provides prevailing party fees to a subcontractor only if withheld sums are undisputed. By doing so it would act as a penalty to a wrongdoer and as a deterrent to future would-be wrongdoers. But is the reverse also true? If a subcontractor brings a claim under 713.346 knowing the sums are disputed, is the general entitled to prevailing party fees when the court determines the amount was, in fact, disputed?

The statute is unclear as to the fee issue. It provides that "The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney's fee, at trial and on appeal." Why is trial mentioned? As per Astaldi, there is a distinction between an undisputed sums claim that does not go to trial, and a disputed claim which does. Does the statute mention trial and appeal to indicate the court levels, as opposed to an actual trial?

Justin R. Zinzow
Board Certified in Construction Law
Zinzow Law, LLC
35111 U.S. Highway 19 North
Suite 302
Palm Harbor, FL 34684
Phone: (727) 787-3121
Fax: (727) 787-3231
www.zinzowlaw.com http://www.zinzowlaw.com/

This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com

Good issue. Couple comments: 1. Did the Court decline to hold the evidentiary hearing despite a clear statutory requirement to hold one or did the plaintiff fail to schedule the hearing with the Court? I suspect the latter especially if there was a breach of contract claim where the parties may have been focusing their attention. I don't see a circuit court judge unilaterally scheduling an evidentiary hearing on such a complaint in the absence of a party bringing it to court's attention and scheduling it. 2. With respect to the evidentiary hearing vs. reference to "trial" later in the statute, I don't believe that the evidentiary hearing functions as the sole adjudicatory procedure in an action filed under Fla. Stat. s. 713.346. The early evidentiary hearing is expressly offered as a means by which the plaintiff might qualify for some extraordinary prejudgment remedies such as a "temporary injunction" or "prejudgment attachment". The evidentiary hearing doesn't mean that there is no later trial of an action filed under this statute; it just provides an evidentiary and procedural basis for the issuance of the extraordinary "prejudgment" relief spelled out at subsection (4). 3. In order to prevail in this statutory action, I believe it is incumbent on the plaintiff to both plead and prove the existence of an "undisputed obligation" due from defendant to plaintiff. That's a high bar and for this reason this statutory action seems to be rarely invoked. Subsection (4) appears to expressly require proof of "each allegation of the complaint" which would include the allegation of an undisputed debt. If plaintiff fails to prove the existence of the undisputed debt, then Plaintiff would not prevail in the action and defendant would appear to be entitled to recover prevailing party attorney's fees. 4. The combination of the high bar of pleading and proving undisputed debt with the risk of plaintiff being obligated to pay defense atty's fees is enough to keep most practitioners from invoking this statute. Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image003.jpg@01D0A79A.0D7D44E0] From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow Sent: Monday, June 15, 2015 4:47 PM To: clc-discussion@lists.flabarrpptl.org Subject: [CLC-Discussion] Payment of "Undisputed Sums" which the court Ultimately finds to be disputed--Remedy & Prevailing Party Fees Good afternoon: We have run across an interesting issue. I will start by framing the issue and would appreciate any insights those on this distribution list can provide. This might also be an area ripe for legislative clarification. The Issue: When a 713.346, Florida Statutes action is brought by a subcontractor against a general and the court fails to hold the summary hearing but finds at trial that the general had a bona fide dispute (but then also found the general breached the contract), is the general who withheld payment because of the bona fide dispute entitled to prevailing party fees under 713.346? We have been engaged as counsel following a trial loss by our client's former trial counsel. The complaint which commenced the lawsuit was brought by a subcontractor against the general. It contained a count under 713.346, Florida Statutes over allegedly undisputed sums, and a count for breach of contract. The Judge never held the summary hearing required by 713.346. Instead, the Judge let everything go to trial. The court found that the sums were disputed by the general and that it was a close call, but ultimately ruled in favor of the subcontractor on both counts. It appears the Judge erred in ruling for the subcontractor on 713.346 because the sums were disputed. Who should be entitled to fees, if anyone, under 713.346? In Astaldi Const. Corp. the Fifth District Court of Appeal, interpreting section 255.071, Florida Statutes (materially similar to 713.346), held that 713.346 does not provide a mechanism for relief as to disputed sums and indicated that disputed sums must go to trial. The issue of prevailing party attorney's fees was not mentioned in the decision, but the court was clearly differentiating between disputed and undisputed claims. Logic and fairness would suggest that 713.346 provides prevailing party fees to a subcontractor only if withheld sums are undisputed. By doing so it would act as a penalty to a wrongdoer and as a deterrent to future would-be wrongdoers. But is the reverse also true? If a subcontractor brings a claim under 713.346 knowing the sums are disputed, is the general entitled to prevailing party fees when the court determines the amount was, in fact, disputed? The statute is unclear as to the fee issue. It provides that "The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney's fee, at trial and on appeal." Why is trial mentioned? As per Astaldi, there is a distinction between an undisputed sums claim that does not go to trial, and a disputed claim which does. Does the statute mention trial and appeal to indicate the court levels, as opposed to an actual trial? Justin R. Zinzow Board Certified in Construction Law Zinzow Law, LLC 35111 U.S. Highway 19 North Suite 302 Palm Harbor, FL 34684 Phone: (727) 787-3121 Fax: (727) 787-3231 www.zinzowlaw.com<http://www.zinzowlaw.com/> This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com

JZ

Justin Zinzow

Mon, Jun 15, 2015 10:44 PM

Michael, thank you for your response. I am copying the list on my reply so that those who wish to respond have the additional fact you seek.

The court did not decline to hold the summary hearing. The plaintiff did not schedule it, I suspect for the reason you mention.

Justin R. Zinzow
Board Certified in Construction Law
Zinzow Law, LLC
35111 U.S. Highway 19 North
Suite 302
Palm Harbor, FL 34684
Phone: (727) 787-3121
Fax: (727) 787-3231
www.zinzowlaw.com http://www.zinzowlaw.com/

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Monday, June 15, 2015 6:35 PM
To: Justin Zinzow; clc-discussion@lists.flabarrpptl.org
Subject: RE: Payment of "Undisputed Sums" which the court Ultimately finds to be disputed--Remedy & Prevailing Party Fees

Good issue. Couple comments:

   Did the Court decline to hold the evidentiary hearing despite a clear statutory requirement to hold one or did the plaintiff fail to schedule the hearing with the Court?   I suspect the latter especially if there was a breach of contract claim where the parties may have been focusing their attention.  I don’t see a circuit court judge unilaterally scheduling an evidentiary hearing on such a complaint in the absence of a party bringing it to court’s attention and scheduling it.[JRZ]

   With respect to the evidentiary hearing vs. reference to “trial” later in the statute, I don’t believe that the evidentiary hearing functions as the sole adjudicatory procedure in an action filed under Fla. Stat. s. 713.346.  The early evidentiary hearing  is expressly offered as a  means by which the plaintiff might qualify for some extraordinary prejudgment remedies such as a “temporary injunction” or “prejudgment attachment”.  The evidentiary hearing doesn’t mean that there is no later trial of an action filed under this statute; it just provides an evidentiary and procedural basis for the issuance of the extraordinary “prejudgment” relief spelled out at subsection (4).

   In order to prevail in this statutory action, I believe it is incumbent on the plaintiff to both plead and prove the existence of an “undisputed obligation” due from defendant to plaintiff.  That’s a high bar and for this reason this statutory action seems to be rarely invoked.  Subsection (4) appears to expressly require proof  of “each allegation of the complaint” which would include the allegation of an undisputed debt.  If plaintiff fails to prove the existence of the undisputed debt, then Plaintiff would not prevail in the action and defendant would appear to be entitled to recover prevailing party attorney’s fees.

   The combination of the high bar of pleading and  proving undisputed debt with the risk of plaintiff being obligated to pay defense atty’s fees is enough to keep most practitioners from invoking this statute.

Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

    [cid:image001.jpg@01D0A79B.551D2FD0]

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow
Sent: Monday, June 15, 2015 4:47 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Payment of "Undisputed Sums" which the court Ultimately finds to be disputed--Remedy & Prevailing Party Fees

Good afternoon: We have run across an interesting issue. I will start by framing the issue and would appreciate any insights those on this distribution list can provide. This might also be an area ripe for legislative clarification.

The Issue: When a 713.346, Florida Statutes action is brought by a subcontractor against a general and the court fails to hold the summary hearing but finds at trial that the general had a bona fide dispute (but then also found the general breached the contract), is the general who withheld payment because of the bona fide dispute entitled to prevailing party fees under 713.346?

We have been engaged as counsel following a trial loss by our client’s former trial counsel. The complaint which commenced the lawsuit was brought by a subcontractor against the general. It contained a count under 713.346, Florida Statutes over allegedly undisputed sums, and a count for breach of contract.

The Judge never held the summary hearing required by 713.346. Instead, the Judge let everything go to trial. The court found that the sums were disputed by the general and that it was a close call, but ultimately ruled in favor of the subcontractor on both counts. It appears the Judge erred in ruling for the subcontractor on 713.346 because the sums were disputed.

Who should be entitled to fees, if anyone, under 713.346?

In Astaldi Const. Corp. the Fifth District Court of Appeal, interpreting section 255.071, Florida Statutes (materially similar to 713.346), held that 713.346 does not provide a mechanism for relief as to disputed sums and indicated that disputed sums must go to trial. The issue of prevailing party attorney’s fees was not mentioned in the decision, but the court was clearly differentiating between disputed and undisputed claims.

Logic and fairness would suggest that 713.346 provides prevailing party fees to a subcontractor only if withheld sums are undisputed. By doing so it would act as a penalty to a wrongdoer and as a deterrent to future would-be wrongdoers. But is the reverse also true? If a subcontractor brings a claim under 713.346 knowing the sums are disputed, is the general entitled to prevailing party fees when the court determines the amount was, in fact, disputed?

The statute is unclear as to the fee issue. It provides that “The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney's fee, at trial and on appeal.” Why is trial mentioned? As per Astaldi, there is a distinction between an undisputed sums claim that does not go to trial, and a disputed claim which does. Does the statute mention trial and appeal to indicate the court levels, as opposed to an actual trial?

Justin R. Zinzow
Board Certified in Construction Law
Zinzow Law, LLC
35111 U.S. Highway 19 North
Suite 302
Palm Harbor, FL 34684
Phone: (727) 787-3121
Fax: (727) 787-3231
www.zinzowlaw.com http://www.zinzowlaw.com/

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

[v4.30]

Michael, thank you for your response. I am copying the list on my reply so that those who wish to respond have the additional fact you seek. The court did not decline to hold the summary hearing. The plaintiff did not schedule it, I suspect for the reason you mention. Justin R. Zinzow Board Certified in Construction Law Zinzow Law, LLC 35111 U.S. Highway 19 North Suite 302 Palm Harbor, FL 34684 Phone: (727) 787-3121 Fax: (727) 787-3231 www.zinzowlaw.com<http://www.zinzowlaw.com/> From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com] Sent: Monday, June 15, 2015 6:35 PM To: Justin Zinzow; clc-discussion@lists.flabarrpptl.org Subject: RE: Payment of "Undisputed Sums" which the court Ultimately finds to be disputed--Remedy & Prevailing Party Fees Good issue. Couple comments: 1. Did the Court decline to hold the evidentiary hearing despite a clear statutory requirement to hold one or did the plaintiff fail to schedule the hearing with the Court? I suspect the latter especially if there was a breach of contract claim where the parties may have been focusing their attention. I don’t see a circuit court judge unilaterally scheduling an evidentiary hearing on such a complaint in the absence of a party bringing it to court’s attention and scheduling it.[JRZ] 2. With respect to the evidentiary hearing vs. reference to “trial” later in the statute, I don’t believe that the evidentiary hearing functions as the sole adjudicatory procedure in an action filed under Fla. Stat. s. 713.346. The early evidentiary hearing is expressly offered as a means by which the plaintiff might qualify for some extraordinary prejudgment remedies such as a “temporary injunction” or “prejudgment attachment”. The evidentiary hearing doesn’t mean that there is no later trial of an action filed under this statute; it just provides an evidentiary and procedural basis for the issuance of the extraordinary “prejudgment” relief spelled out at subsection (4). 3. In order to prevail in this statutory action, I believe it is incumbent on the plaintiff to both plead and prove the existence of an “undisputed obligation” due from defendant to plaintiff. That’s a high bar and for this reason this statutory action seems to be rarely invoked. Subsection (4) appears to expressly require proof of “each allegation of the complaint” which would include the allegation of an undisputed debt. If plaintiff fails to prove the existence of the undisputed debt, then Plaintiff would not prevail in the action and defendant would appear to be entitled to recover prevailing party attorney’s fees. 4. The combination of the high bar of pleading and proving undisputed debt with the risk of plaintiff being obligated to pay defense atty’s fees is enough to keep most practitioners from invoking this statute. Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image001.jpg@01D0A79B.551D2FD0] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow Sent: Monday, June 15, 2015 4:47 PM To: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: [CLC-Discussion] Payment of "Undisputed Sums" which the court Ultimately finds to be disputed--Remedy & Prevailing Party Fees Good afternoon: We have run across an interesting issue. I will start by framing the issue and would appreciate any insights those on this distribution list can provide. This might also be an area ripe for legislative clarification. The Issue: When a 713.346, Florida Statutes action is brought by a subcontractor against a general and the court fails to hold the summary hearing but finds at trial that the general had a bona fide dispute (but then also found the general breached the contract), is the general who withheld payment because of the bona fide dispute entitled to prevailing party fees under 713.346? We have been engaged as counsel following a trial loss by our client’s former trial counsel. The complaint which commenced the lawsuit was brought by a subcontractor against the general. It contained a count under 713.346, Florida Statutes over allegedly undisputed sums, and a count for breach of contract. The Judge never held the summary hearing required by 713.346. Instead, the Judge let everything go to trial. The court found that the sums were disputed by the general and that it was a close call, but ultimately ruled in favor of the subcontractor on both counts. It appears the Judge erred in ruling for the subcontractor on 713.346 because the sums were disputed. Who should be entitled to fees, if anyone, under 713.346? In Astaldi Const. Corp. the Fifth District Court of Appeal, interpreting section 255.071, Florida Statutes (materially similar to 713.346), held that 713.346 does not provide a mechanism for relief as to disputed sums and indicated that disputed sums must go to trial. The issue of prevailing party attorney’s fees was not mentioned in the decision, but the court was clearly differentiating between disputed and undisputed claims. Logic and fairness would suggest that 713.346 provides prevailing party fees to a subcontractor only if withheld sums are undisputed. By doing so it would act as a penalty to a wrongdoer and as a deterrent to future would-be wrongdoers. But is the reverse also true? If a subcontractor brings a claim under 713.346 knowing the sums are disputed, is the general entitled to prevailing party fees when the court determines the amount was, in fact, disputed? The statute is unclear as to the fee issue. It provides that “The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney's fee, at trial and on appeal.” Why is trial mentioned? As per Astaldi, there is a distinction between an undisputed sums claim that does not go to trial, and a disputed claim which does. Does the statute mention trial and appeal to indicate the court levels, as opposed to an actual trial? Justin R. Zinzow Board Certified in Construction Law Zinzow Law, LLC 35111 U.S. Highway 19 North Suite 302 Palm Harbor, FL 34684 Phone: (727) 787-3121 Fax: (727) 787-3231 www.zinzowlaw.com<http://www.zinzowlaw.com/> Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. [v4.30]

AF

Andrea Fair

Wed, Apr 20, 2016 3:11 PM

Hello everyone:

I was wondering if anyone has come across a case where the failure to include the statutory notice in the contract or where the failure to provide it in a separate document resulted in the loss of lien rights.

(2)(b) states that “The failure to provide such written notice does not bar the enforcement of a lien against a person who has not been adversely affected.”

Are there any cases where a person has actually been adversely affected and the contractor lost its lien rights?

Thank you in advance for any input you have.

Andrea

Andrea M. Fair
Board Certified Construction Attorney
Note our New Address and Phone Number effective January 8, 2016
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
2519 McMullen Booth Road
#510-228
Clearwater, FL 33761
(727) 726-7009 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01D19AF5.6B56F120]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

Hello everyone: I was wondering if anyone has come across a case where the failure to include the statutory notice in the contract or where the failure to provide it in a separate document resulted in the loss of lien rights. (2)(b) states that “The failure to provide such written notice does not bar the enforcement of a lien against a person who has not been adversely affected.” Are there any cases where a person has actually been adversely affected and the contractor lost its lien rights? Thank you in advance for any input you have. Andrea Andrea M. Fair Board Certified Construction Attorney ***Note our New Address and Phone Number effective January 8, 2016*** ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 2519 McMullen Booth Road #510-228 Clearwater, FL 33761 (727) 726-7009 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01D19AF5.6B56F120] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

AF

Andrea Fair

Tue, May 31, 2016 3:53 PM

Hello everyone! I hope you all enjoyed the long weekend.

I have 2 questions:

  I have a father/son construction business relationship that is in need of some kind of operating agreement or joint venture agreement.  Essentially, the son used to work for the father, who is a GC (primarily high-end custom homes).  The son has now branched off and started his own remodeling company because his father was not interested in doing any remodeling.  However, they plan to continue working together periodically.  I know they could hire each other as a subcontractor but I think there will be occasions when they want to work together in a joint venture type of arrangement and split the profits.  I was wondering if anyone had some ideas or contract language that would help me draft some kind of formula for who does what and how they will split the profits.  They most certainly will not keep track of their time so that is not an option.

  My second question is not specific to construction law.  Does anyone have a list of the counties or judges who are now requiring written responses to motions and ruling on motions without a hearing (strictly based on the written submissions)?

Thank you in advance for any assistance you can give.

Andrea

Andrea M. Fair
Board Certified Construction Attorney
Note our New Address and Phone Number effective January 8, 2016
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
2519 McMullen Booth Road
#510-228
Clearwater, FL 33761
(727) 726-7009 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01D1BB31.AF786670]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

Hello everyone! I hope you all enjoyed the long weekend. I have 2 questions: 1. I have a father/son construction business relationship that is in need of some kind of operating agreement or joint venture agreement. Essentially, the son used to work for the father, who is a GC (primarily high-end custom homes). The son has now branched off and started his own remodeling company because his father was not interested in doing any remodeling. However, they plan to continue working together periodically. I know they could hire each other as a subcontractor but I think there will be occasions when they want to work together in a joint venture type of arrangement and split the profits. I was wondering if anyone had some ideas or contract language that would help me draft some kind of formula for who does what and how they will split the profits. They most certainly will not keep track of their time so that is not an option. 2. My second question is not specific to construction law. Does anyone have a list of the counties or judges who are now requiring written responses to motions and ruling on motions without a hearing (strictly based on the written submissions)? Thank you in advance for any assistance you can give. Andrea Andrea M. Fair Board Certified Construction Attorney ***Note our New Address and Phone Number effective January 8, 2016*** ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 2519 McMullen Booth Road #510-228 Clearwater, FL 33761 (727) 726-7009 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01D1BB31.AF786670] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

MG

Meyer, George J.

Tue, May 31, 2016 4:36 PM

Andrea, typically the profits and losses of a JV are allocated among the JV members based upon their ownership interest as stated in the JV Agmt. If there are 2 JV members and each has a 50% ownership interest in the JV, then unless the JV Agmt provides otherwise, they will each receive 50% of the Profits (or be responsible for paying 50% of the Losses). To the extent there is a capital call and capital needs to be paid in, each of those 2 JV members would be liable for 50% of the capital call. In addition, all JV decisions would have to be mutually agreed upon by both JV members (unless the JV Agmt provided otherwise).

The allocation of ownership interest doesn’t have to be 50%-50%. It can be any combination the parties want that adds up to 100% (e.g., 75/25, 60/40, etc.). If ownership is not 50%-50%, then one party will be the majority member and one the minority member. Since ownership interest also typically corresponds to voting interests, that means the majority member will have control over the JV (again unless the JV Agmt provides otherwise).

For your father/son arrangement, perhaps they may want to base their respective ownership interest on how much of the total contract price/work each will be handling with their company. For example, if the total contract price will be $500K, with the son’s company handling $100K of the total work and the father’s company handling $400K of the total work, then they might consider a JV where the father has 80% and the son 20%. Also, the parties can agree to one percentage allocation for voting (i.e., JV control) and a different allocation for sharing profits and losses and another allocation for capital calls.

Hope this helps.

Best regards,
George

[Carlton Fields, P.A.]
George J. Meyer
Attorney at Law
Certified by The Florida Bar in Construction Law

4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida 33607-5780
Direct: 813.229.4140 | Fax: 813.229.4133

gmeyer@carltonfields.com mailto:gmeyer@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
biohttp://www.carltonfields.com/gmeyer/ |vcardhttp://www.carltonfields.com/FCWSite/Features/_Attorneys/vCard.aspx?attorney=89

Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Tuesday, May 31, 2016 11:54 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 2 questions

Hello everyone! I hope you all enjoyed the long weekend.

I have 2 questions:

  I have a father/son construction business relationship that is in need of some kind of operating agreement or joint venture agreement.  Essentially, the son used to work for the father, who is a GC (primarily high-end custom homes).  The son has now branched off and started his own remodeling company because his father was not interested in doing any remodeling.  However, they plan to continue working together periodically.  I know they could hire each other as a subcontractor but I think there will be occasions when they want to work together in a joint venture type of arrangement and split the profits.  I was wondering if anyone had some ideas or contract language that would help me draft some kind of formula for who does what and how they will split the profits.  They most certainly will not keep track of their time so that is not an option.

  My second question is not specific to construction law.  Does anyone have a list of the counties or judges who are now requiring written responses to motions and ruling on motions without a hearing (strictly based on the written submissions)?

Thank you in advance for any assistance you can give.

Andrea

Andrea M. Fair
Board Certified Construction Attorney
Note our New Address and Phone Number effective January 8, 2016
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
2519 McMullen Booth Road
#510-228
Clearwater, FL 33761
(727) 726-7009 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01CC8816.941390B0]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

Andrea, typically the profits and losses of a JV are allocated among the JV members based upon their ownership interest as stated in the JV Agmt. If there are 2 JV members and each has a 50% ownership interest in the JV, then unless the JV Agmt provides otherwise, they will each receive 50% of the Profits (or be responsible for paying 50% of the Losses). To the extent there is a capital call and capital needs to be paid in, each of those 2 JV members would be liable for 50% of the capital call. In addition, all JV decisions would have to be mutually agreed upon by both JV members (unless the JV Agmt provided otherwise). The allocation of ownership interest doesn’t have to be 50%-50%. It can be any combination the parties want that adds up to 100% (e.g., 75/25, 60/40, etc.). If ownership is not 50%-50%, then one party will be the majority member and one the minority member. Since ownership interest also typically corresponds to voting interests, that means the majority member will have control over the JV (again unless the JV Agmt provides otherwise). For your father/son arrangement, perhaps they may want to base their respective ownership interest on how much of the total contract price/work each will be handling with their company. For example, if the total contract price will be $500K, with the son’s company handling $100K of the total work and the father’s company handling $400K of the total work, then they might consider a JV where the father has 80% and the son 20%. Also, the parties can agree to one percentage allocation for voting (i.e., JV control) and a different allocation for sharing profits and losses and another allocation for capital calls. Hope this helps. Best regards, George [Carlton Fields, P.A.] George J. Meyer Attorney at Law Certified by The Florida Bar in Construction Law 4221 W. Boy Scout Blvd., Ste. 1000 Tampa, Florida 33607-5780 Direct: 813.229.4140 | Fax: 813.229.4133 gmeyer@carltonfields.com<mailto:gmeyer@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/gmeyer/> |vcard<http://www.carltonfields.com/FCWSite/Features/_Attorneys/vCard.aspx?attorney=89> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair Sent: Tuesday, May 31, 2016 11:54 AM To: clc-discussion@lists.flabarrpptl.org Subject: [CLC-Discussion] 2 questions Hello everyone! I hope you all enjoyed the long weekend. I have 2 questions: 1. I have a father/son construction business relationship that is in need of some kind of operating agreement or joint venture agreement. Essentially, the son used to work for the father, who is a GC (primarily high-end custom homes). The son has now branched off and started his own remodeling company because his father was not interested in doing any remodeling. However, they plan to continue working together periodically. I know they could hire each other as a subcontractor but I think there will be occasions when they want to work together in a joint venture type of arrangement and split the profits. I was wondering if anyone had some ideas or contract language that would help me draft some kind of formula for who does what and how they will split the profits. They most certainly will not keep track of their time so that is not an option. 2. My second question is not specific to construction law. Does anyone have a list of the counties or judges who are now requiring written responses to motions and ruling on motions without a hearing (strictly based on the written submissions)? Thank you in advance for any assistance you can give. Andrea Andrea M. Fair Board Certified Construction Attorney ***Note our New Address and Phone Number effective January 8, 2016*** ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 2519 McMullen Booth Road #510-228 Clearwater, FL 33761 (727) 726-7009 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01CC8816.941390B0] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

FD

Fred Dudley

Tue, May 31, 2016 5:57 PM

I agree with George, and would add that, since a JV is a SEPARATE legal entity (actually, a partnership for a limited purpose) it MUST also have a licensed contractor who has been approved by CILB as it “qualifying agent.”

Without a QA, the JV cannot contract for nor perform construction services without be subjected to criminal, civil and administrative sanctions for “unlicensed activities.”

Fred R. Dudley, Managing Member
Board Certified Construction Lawyer
Dudley, Sellers, Healy & Heath, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.com

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Meyer, George J.
Sent: Tuesday, May 31, 2016 12:48 PM
To: Andrea Fair amf@fairconstructionliens.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 2 questions

Andrea, typically the profits and losses of a JV are allocated among the JV members based upon their ownership interest as stated in the JV Agmt. If there are 2 JV members and each has a 50% ownership interest in the JV, then unless the JV Agmt provides otherwise, they will each receive 50% of the Profits (or be responsible for paying 50% of the Losses). To the extent there is a capital call and capital needs to be paid in, each of those 2 JV members would be liable for 50% of the capital call. In addition, all JV decisions would have to be mutually agreed upon by both JV members (unless the JV Agmt provided otherwise).

The allocation of ownership interest doesn’t have to be 50%-50%. It can be any combination the parties want that adds up to 100% (e.g., 75/25, 60/40, etc.). If ownership is not 50%-50%, then one party will be the majority member and one the minority member. Since ownership interest also typically corresponds to voting interests, that means the majority member will have control over the JV (again unless the JV Agmt provides otherwise).

For your father/son arrangement, perhaps they may want to base their respective ownership interest on how much of the total contract price/work each will be handling with their company. For example, if the total contract price will be $500K, with the son’s company handling $100K of the total work and the father’s company handling $400K of the total work, then they might consider a JV where the father has 80% and the son 20%. Also, the parties can agree to one percentage allocation for voting (i.e., JV control) and a different allocation for sharing profits and losses and another allocation for capital calls.

Hope this helps.

Best regards,
George

[Carlton Fields, P.A.]
George J. Meyer
Attorney at Law
Certified by The Florida Bar in Construction Law

4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida 33607-5780
Direct: 813.229.4140 | Fax: 813.229.4133

gmeyer@carltonfields.com mailto:gmeyer@carltonfields.com | www.carltonfields.com http://www.carltonfields.com/
biohttp://www.carltonfields.com/gmeyer/ |vcardhttp://www.carltonfields.com/FCWSite/Features/_Attorneys/vCard.aspx?attorney=89

Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Tuesday, May 31, 2016 11:54 AM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 2 questions

Hello everyone! I hope you all enjoyed the long weekend.

I have 2 questions:

 I have a father/son construction business relationship that is in need of some kind of operating agreement or joint venture agreement.  Essentially, the son used to work for the father, who is a GC (primarily high-end custom homes).  The son has now branched off and started his own remodeling company because his father was not interested in doing any remodeling.  However, they plan to continue working together periodically.  I know they could hire each other as a subcontractor but I think there will be occasions when they want to work together in a joint venture type of arrangement and split the profits.  I was wondering if anyone had some ideas or contract language that would help me draft some kind of formula for who does what and how they will split the profits.  They most certainly will not keep track of their time so that is not an option.

 My second question is not specific to construction law.  Does anyone have a list of the counties or judges who are now requiring written responses to motions and ruling on motions without a hearing (strictly based on the written submissions)?

Thank you in advance for any assistance you can give.

Andrea

Andrea M. Fair
Board Certified Construction Attorney
Note our New Address and Phone Number effective January 8, 2016
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
2519 McMullen Booth Road
#510-228
Clearwater, FL 33761
(727) 726-7009 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01CC8816.941390B0]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

I agree with George, and would add that, since a JV is a SEPARATE legal entity (actually, a partnership for a limited purpose) it MUST also have a licensed contractor who has been approved by CILB as it “qualifying agent.” Without a QA, the JV cannot contract for nor perform construction services without be subjected to criminal, civil and administrative sanctions for “unlicensed activities.” Fred R. Dudley, Managing Member Board Certified Construction Lawyer Dudley, Sellers, Healy & Heath, P. L. SunTrust Financial Center, Suite 301 3522 Thomasville Road Tallahassee, Florida 32308 Cell: (850) 294-3471 Direct: (850)692-6368 dudley@mylicenselaw.com From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Meyer, George J. Sent: Tuesday, May 31, 2016 12:48 PM To: Andrea Fair <amf@fairconstructionliens.com>; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] 2 questions Andrea, typically the profits and losses of a JV are allocated among the JV members based upon their ownership interest as stated in the JV Agmt. If there are 2 JV members and each has a 50% ownership interest in the JV, then unless the JV Agmt provides otherwise, they will each receive 50% of the Profits (or be responsible for paying 50% of the Losses). To the extent there is a capital call and capital needs to be paid in, each of those 2 JV members would be liable for 50% of the capital call. In addition, all JV decisions would have to be mutually agreed upon by both JV members (unless the JV Agmt provided otherwise). The allocation of ownership interest doesn’t have to be 50%-50%. It can be any combination the parties want that adds up to 100% (e.g., 75/25, 60/40, etc.). If ownership is not 50%-50%, then one party will be the majority member and one the minority member. Since ownership interest also typically corresponds to voting interests, that means the majority member will have control over the JV (again unless the JV Agmt provides otherwise). For your father/son arrangement, perhaps they may want to base their respective ownership interest on how much of the total contract price/work each will be handling with their company. For example, if the total contract price will be $500K, with the son’s company handling $100K of the total work and the father’s company handling $400K of the total work, then they might consider a JV where the father has 80% and the son 20%. Also, the parties can agree to one percentage allocation for voting (i.e., JV control) and a different allocation for sharing profits and losses and another allocation for capital calls. Hope this helps. Best regards, George [Carlton Fields, P.A.] George J. Meyer Attorney at Law Certified by The Florida Bar in Construction Law 4221 W. Boy Scout Blvd., Ste. 1000 Tampa, Florida 33607-5780 Direct: 813.229.4140 | Fax: 813.229.4133 gmeyer@carltonfields.com<mailto:gmeyer@carltonfields.com> | www.carltonfields.com<http://www.carltonfields.com/> bio<http://www.carltonfields.com/gmeyer/> |vcard<http://www.carltonfields.com/FCWSite/Features/_Attorneys/vCard.aspx?attorney=89> Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product. If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair Sent: Tuesday, May 31, 2016 11:54 AM To: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: [CLC-Discussion] 2 questions Hello everyone! I hope you all enjoyed the long weekend. I have 2 questions: 1. I have a father/son construction business relationship that is in need of some kind of operating agreement or joint venture agreement. Essentially, the son used to work for the father, who is a GC (primarily high-end custom homes). The son has now branched off and started his own remodeling company because his father was not interested in doing any remodeling. However, they plan to continue working together periodically. I know they could hire each other as a subcontractor but I think there will be occasions when they want to work together in a joint venture type of arrangement and split the profits. I was wondering if anyone had some ideas or contract language that would help me draft some kind of formula for who does what and how they will split the profits. They most certainly will not keep track of their time so that is not an option. 2. My second question is not specific to construction law. Does anyone have a list of the counties or judges who are now requiring written responses to motions and ruling on motions without a hearing (strictly based on the written submissions)? Thank you in advance for any assistance you can give. Andrea Andrea M. Fair Board Certified Construction Attorney ***Note our New Address and Phone Number effective January 8, 2016*** ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 2519 McMullen Booth Road #510-228 Clearwater, FL 33761 (727) 726-7009 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01CC8816.941390B0] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

AF

Andrea Fair

Fri, Jul 8, 2016 6:28 PM

Hello CLC members:

Can anyone send me the 2 flow charts for (1) Change Orders and Claims and (2) Claims Process? This is for AIA A201 (2007).

Thank you in advance for any assistance you can give.

Andrea

Andrea M. Fair
Board Certified Construction Attorney
Note our New Address and Phone Number effective January 8, 2016
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
2519 McMullen Booth Road
#510-228
Clearwater, FL 33761
(727) 726-7009 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01D1D924.FCD2D2A0]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

Hello CLC members: Can anyone send me the 2 flow charts for (1) Change Orders and Claims and (2) Claims Process? This is for AIA A201 (2007). Thank you in advance for any assistance you can give. Andrea Andrea M. Fair Board Certified Construction Attorney ***Note our New Address and Phone Number effective January 8, 2016*** ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 2519 McMullen Booth Road #510-228 Clearwater, FL 33761 (727) 726-7009 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01D1D924.FCD2D2A0] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

AF

Andrea Fair

Thu, Sep 22, 2016 8:06 PM

Does anyone have an Order of Accounting under 713.31(1) that you would be willing to share with me?

Thank you in advance for any assistance you can give.

Thanks,
Andrea

Andrea M. Fair
Board Certified Construction Attorney
Note our New Address and Phone Number effective January 8, 2016
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
2519 McMullen Booth Road
#510-228
Clearwater, FL 33761
(727) 726-7009 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

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The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

Does anyone have an Order of Accounting under 713.31(1) that you would be willing to share with me? Thank you in advance for any assistance you can give. Thanks, Andrea Andrea M. Fair Board Certified Construction Attorney ***Note our New Address and Phone Number effective January 8, 2016*** ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 2519 McMullen Booth Road #510-228 Clearwater, FL 33761 (727) 726-7009 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01D214EB.56889F30] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.