ARTICLES

ABSENT AMBIGUITY PLAIN MEANING GOVERNS

Absent Ambiguity, Plain Meaning of Contract Language Controls By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC The best contracts clearly and unambiguously spell out the rights and responsibilities of the parties. Where contract language is susceptible of more than one interpretation, however, courts are charged with the responsibility of determining the intent of the parties. Where language is not ambiguous, courts generally will not go beyond the language of the contract itself to determine the meaning of the contract language. Where language is found to be ambiguous, however, courts allow evidence outside of the contract called “parol” evidence

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ARBITRATION IS A MATTER OF CONTRACT

By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC Arbitration is an alternative to litigation in the court system. There are two sides to the arbitration v. litigation debate and there are pros and cons to both forms of dispute resolution. Arbitration can be a quicker and cheaper process though this is less the case in large complex disputes. Litigation allows for more thorough fact discovery and for review of a court’s decision (by appeal) which is severely limited in arbitration. Arbitration can offer the benefit of having the person who decides your dispute be a person with knowledge

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UNDERSTANDING CONDITIONAL PAYMENT LANGUAGE – THE DREADED “PAY IF PAID”

By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC Most subcontractors have had the unfortunate experience of being on the wrong side of a “take it or leave it” offer from a contractor regarding the form of a subcontract. The reality of the construction industry is that contractors often hold the cards and subcontractors may have little bargaining power at contract inception. “Sign my contract or I’ll find another plumber, electrician, mason, etc.” is a familiar refrain. While it is always best to attempt to negotiate unfavorable contract language, the fact is that sometimes the other party won’t budge

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WHAT CONSTITUTES LAST WORK

WHAT COUNTS AS “LAST WORK” FOR TIMELY RECORDING YOUR LIEN? By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC Most lienors know that they must record their construction lien within ninety days of their “last work.” But just what constitutes “last work” for the purposes of a construction lien? Perhaps the most common question in this regard is whether “punch list” work counts as “last work.” The answer to that question can depend on the nature of the work, the timing of the work and the magnitude of the work in relation to the overall work performed by the

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DO YOU HAVE A LIEN CLAIM BOND CLAIM OR BOTH

By Douglas J. Roberts, Esq. Contractors working on construction projects must be proactive to protect their rights from the very beginning of the project. While a general contractor, subcontractor or material supplier will typically have a claim for breach of contract against their customer, the Construction Lien Law, Chapter 713, et seq., provides additional rights to prevent performance without payment. It is important to determine what rights are available right away. The first place to look is the Notice of Commencement. Owners (not contractors) are required by law to record a Notice of Commencement for private projects prior to commencement

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FORCE MAJURE – CONSTRUING CONTRACT AS A WHOLE LEADS TO NO RECOVERY FOR CONTRACTOR

CONSTRUING CONTRACT AS A WHOLE LEADS TO NO RECOVERY FOR CONTRACTOR By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC It is a well settled rule of contract interpretation that, where possible, courts must read contract provisions harmoniously to give effect to all portions of the contract. That’s just what the court did inS&B/BIBB Hines PB 3 Joint Venture v. Progress Energy Florida, Inc., 2010 WL 457439 (Fla. 11 th Cir. 2010), and the result was that a contractor was denied its claim for additional costs associated with hurricanes. In that case, the contractor contracted with the owner to

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FRAUD OR BREACH OF CONTRACT

By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC Unsatisfied parties to a contract most often bring claims for breach of contact. In certain limited circumstances, a claim for fraud may also be available to the aggrieved party. There are many reasons why a dissatisfied party to a contract may wish to bring a fraud claim in addition to a breach of contract claim. For one thing, where fraud is proven a party can be entitled to “punitive” damages in addition to its breach of contract damages. Punitive damages are damages intended to punish the wrongdoer rather than just

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ESCROW DEPOSITS

GENERAL CONTRACTOR NOT REQUIRED TO ESCROW DEPOSIT WHERE HOME BUYER OWNS THE LAND UPON WHICH HOME WILL BE CONSTRUCTED By: Michael E. Stearns, Esq. and Peter B. Rowell, Esq. Stearns, Roberts & Guttentag, LLC Florida Statute Section 501.1375 requires “building contractors” and “developers” to maintain trust accounts and to hold purchaser’s deposits in such accounts unless waived in writing by the purchaser. In JPG Enterprises, Inc. v. McLellan, 2010 WL 445394 (Fla. 4th DCA 2010) the court considered whether a general contractor constructing a single-family residence on land owned by the owner (as opposed to land owned by the contractor

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FLA. STAT. CHAP. 558

COURT FINDS ABATING CASE ACCORDING TO CHAPTER 558 WOULD BE FUTILE WHEN MATERIAL SUPPLIER FAILS TO SEEK INSPECTION OF ALLEGED CONSTRUCTION DEFECTS By: Michael Stearns, Esq. Stearns, Roberts & Guttentag, LLC In Banner Supply Co. v. Harrell, 2009 WL 4927912 (Fla. 3rd DCA 2009) the court considered the issue of whether a material supplier could abate an owner’s lawsuit for alleged construction defects because of the owner’s failure to comply with the notice and opportunity to inspect requirements of Florida Statute, Chapter 558 (“Chap. 558”). Jason and Melissa Harrell (“Owners”) filed their initial complaint on February 3, 2009, as lead

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FORCE MAJURE – COURT FINDS FORCE MAJEURE CLAUSE IN CONTRACT MUST BE INTERPRETED ACCORDING TO ITS PLAIN, UNAMBIGUOUS MEANING

COURT FINDS FORCE MAJEURE CLAUSE IN CONTRACT MUST BE INTERPRETED ACCORDING TO ITS PLAIN, UNAMBIGUOUS MEANING By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC In S&B/BIBB Hines PB 3 Joint Venture v. Progress Energy Florida, Inc., 2010 WL 457439 (Fla. 11 th Cir. 2010) the court reviewed the issue of whether a contractor would be entitled to additional costs after several hurricanes, a labor shortage and materials shortage dramatically increased the cost of construction of a fixed price contract. S&B/BIBB Hines PB3 Joint Venture and S & B Engineers and Constructors, Ltd. (collectively “Contractor”) entered into two fixed

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