Jan 19 2016

Enforcing Construction Liens: The Importance of Punctuality


By: A. Starkey DeSoto

“If you’re not early, you’re late.”Vince Lombardi

While there are many different variations of exactly what the great Vince Lombardi stated regarding punctuality, his message on the importance of punctuality cannot be overstated.  Punctuality is important in nearly every aspect of our lives.   Punctuality can set the tone for our relationships, both personally and professionally, and could, perhaps, make or break a business deal.  Punctuality has been said to be the “soul of business” (Thomas C. Haliburton).  However, it is important to remember that the concept of punctuality is not limited to simply arriving at a place at the right time (or early), but, rather, about taking actions at the right time.  For this reason, punctuality is, perhaps, most important in the legal realm, because failing to take specific actions at the right time could cause you to forfeit important legal rights.Calendar and Clock

In Florida, a contractor, subcontractor, or supplier has the legal right to place a lien on a project owner’s property when he or she doesn’t get paid; however, in order to preserve those rights, the contractor, subcontractor, or supplier must take certain actions at the right time.  For example, a contractor that has a direct contract with the project owner may be able to simply file a Claim of Lien within 90 days after completing its final work at the project.  But a subcontractor or supplier without a direct contract with the project owner must take additional steps, such as providing a Notice to Owner not later than 45 days after beginning work, or first supplying materials, at the project.  Similarly, when the project is bonded, the subcontractor or supplier must provide a Notice of Nonpayment to the surety in order to claim rights under the payment bond.  Failure to provide any of the notices within the required time periods, or to timely file a Claim of Lien, will cause the contractor, subcontractor, or supplier to forfeit their lien rights and, possibly, their ability to be paid for the work or materials provided to the project.

If you are a contractor, subcontractor, or supplier in Broward, Miami-Dade, or Palm Beach County, and would like to ensure that you are properly preserving your lien rights, then schedule a consultation with a Broward County construction lawyer by calling (954) 764-6766 or by completing the contact form on this page.

 

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Jan 05 2016

“My Word Is My Bond”: Are Oral Contracts Enforceable?


By: A. Starkey DeSoto

Speaking together social media concept as two crumpled pieces of paper shaped as human head with talk bubble icons taped as communication symbol for business compromise agreement

In general, a contract does not have to be in writing to be enforceable.  Of course, a written contract is usually best, because it clearly sets out the purpose of the contract and the obligations of each party under the contract.  However, in today’s business world, people often make oral agreements believing and intending that both parties to the agreement will honor their obligations.  Perhaps one of the parties to the agreement was highly recommended by a friend, and the other party didn’t believe a written contract was necessary. Or perhaps the agreement was so obviously beneficial to both parties, that neither party comprehended a potential breach of the agreement.  Regardless of the reasons why the agreement was not put into writing, an oral contract is equally enforceable as a written contract under most circumstances.

In Florida, the requirements of a valid contract, whether oral or written, are always the same: offer, acceptance, consideration and sufficiently specific terms.  Nevertheless, a written contract is usually preferable, because it is much easier to prove the existence of a valid written contract.  When one seeks to prove a valid oral contract, one generally needs to look at things such as letters and e-mails between the parties, the conduct and actions of the parties – e.g., payments made or services performed, and other aspects of the circumstances, such as the relationship of the parties.  Even so, some oral contracts are not enforceable under Florida law except under limited circumstances.  Examples of these types of oral contracts include: agreements made for the sale of land; residential leases for a period longer than one year; and contracts that will take more than one year to complete.  For these types of contracts, the agreement must always be reduced writing.

If you need assistance with enforcing an oral contract (in Broward, Palm Beach, or Miami-Dade County), please call our law firm in Fort Lauderdale at (954) 764-6766 to schedule a consultation with a Broward County business lawyer.

 

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Dec 29 2015

Florida Non-Compete Agreements: Is A Referral Source A Legitimate Business Interest?


By: A. Starkey DeSoto

Restrictive covenants in an employment contract, such as non-compete or non-solicitation clauses, are disfavored under Florida law.  Generally, Florida is a right-to-work state, and Florida courts have explained that any contract that attempts to restrain or limit a person’s right or ability to work must be strictly construed.  However, that does not mean that restrictive covenants limiting or prohibiting post-employment competition are not enforceable.  To the contrary, when a restrictive covenant is written in compliance with Florida law, it can be a very powerful tool for an employer to protect its legitimate business interests.

500_F_73789644_SZC7X8lEsB2TTltieaUl8iHTbY75WHMoSection 542.335 of the Florida Statutes provides that restrictive covenants prohibiting or restricting competition must be: (a) reasonable in time, area, and line of business; and (b) designed to protect the employer’s legitimate business interests.  While the Statute defines “legitimate business interests” as including (among other things) trade secrets, substantial relationships with specific prospective or existing customers, and specialized training, questions often arise as to whether the interests that the employer is trying to protect are actually “legitimate” under Florida law.

When interpreting and applying Section 542.335, one issue that occasionally arises is whether “referral sources” qualify as legitimate business interests entitled to protection in an employee non-competition or non-solicitation agreement.  While this issue is not entirely settled in Florida, a recent opinion by the Fourth District Court of Appeal (i.e., the appellate court presiding over Broward County and Palm Beach County) provides some insight.

In Infinity Home Care, LLC v. Amedisys Holding, LLC, 40 Fla. L. Weekly D 1929 (Fla. 4th DCA, Aug. 19, 2015), the Fourth District held that referral sources for home health services are a legitimate business interest entitled to protection under a non-compete and non-solicitation clause in an employment contract.  In so holding, the Court observed that the home health care industry depends on referral sources as a substantial source of business, and that the former employee was specifically hired because of her substantial relationships with particular referral sources.  Thus, the Court concluded that, with respect to the home health care industry, referral sources are protectable legitimate business interests.

Although the Infinity Home Care, LLC case specifically addressed Section 542.335 within the context of the home health services industry, the Court’s reasoning in that case can be applied to many other industries to determine whether a “referral source” is likely a legitimate business interest that is the proper subject of a non-competition/non-solicitation agreement. For example, where the industry relies on referral sources as a substantial source of its business, or where the employee was specifically hired, in large part, because of his or her connections, “referral sources” are likely a legitimate business interest that may be afforded protection under Section 542.335.

If you need clarification regarding whether a non-compete/non-solicitation clause in a Florida employment contract is enforceable in Broward, Miami-Dade, or Palm Beach County, please call our law firm in Fort Lauderdale at (954) 764-6766 to schedule a consultation with a Broward County business lawyer.

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Aug 21 2013

Fla. Stat. § 489.128 Now Allows Payment to Some Unlicensed Contractors


By: E. Scott Golden

Because of the way courts have construed a recent change in Florida law, an unlicensed contractor may, in some circustances, be able to be paid through a court proceeding.  Until recently, that was not the case.

Under the old law, if a contractor was required to have a license to perform his services, but did not have a license, he could not recover anything in court if he was not paid.  Fla. Stat. §489.128 (which precludes any relief “in law or equity by the unlicensed contractor.”)  That has now changed, in certain circumstances.

In the case of MGM Constr. Svcs Corp. v. Travelers Cas. & Sur., 57 So. 3d 884 (Fla. 3d DCA 2011), the Third District Court of Appeal decided that, because of a recent change in the language of Section 489.128, if a contractor does not need to have a state license, but needs to have a county license, and fails to procure the county license, the contractor is not precluded by 489.128 from seeking affirmative relief in court.  This is a change from prior law (which continues to control for contractors who are required to have a state license).

We now have four situations when an unlicensed contractor performs services:

1.           State license required for the type of work being done: The contract is completely unenforceable in law and equity if the contractor did not have a license.  In at least one district (the 1st Distrcit Court of Appeal in North Florida), a person that has paid the unlicensed contractor is entitled to seek disgorgement of the money that has been paid, despite getting to keep the benefit of the contractor’s work.

2.            No state license required, but county license required, for the work being done, and county ordinance does not say that a contract by an unlicensed contractor is unenforceable:  The contract is not automatically unenforceable (at least in the 3d DCA in the MGM Construction case).  There is a series of factors to be weighed, which are listed in MGM in order to determine enforceability.

3.            No state license required, but county license required, for the work being done, and county ordinance says that a contract by an unlicensed contract is unenforceable:  MGM does not directly address this, but the decision intimates that the contract would not be enforceable

4.            No state or county license required: The contract is generally enforceable.

If you need to consult with a Fort Lauderdale construction attorney regarding an issue involving an unlicensed contractor, then please contact our firm at (954) 764-6766 to schedule an appointment.

 

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