Firm Attorneys Nicholas Siegfried and Michael Clark Co-Author Chapters for New ABA Book Titled "Construction Subcontracting: A Comprehensive Practical and Legal Guide"

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Our firm's construction law attorneys have had the privilege of authoring a number of books, manuals and chapters that represent some of the most respected and widely disseminated sources in the country for insight into construction law matters. Recently, the firm's Nicholas D. Siegfried and B. Michael Clark, Jr. (pictured above) co-authored chapters in the new book published by the American Bar Association titled "Construction Subcontracting: A Comprehensive Practical and Legal Guide."

The new volume, which is available for $199.95 from the ABA by clicking here, focuses on the participation and contribution of subcontractors with diverse skills and capabilities in construction projects. It examines the legal relationships between the many parties in a typical construction project, including general contractors, subcontractors, suppliers, designers, and others. As with the projects on which these parties work, the relationships, rights, obligations and remedies among them can, and often do, become quite complicated.

The new book was developed by a team of experienced attorneys, and it covers the subcontract document and performance; insurance, bonding and licensure; disputes and different methods for resolution; special project issues, including public projects, alternative delivery methods, and green/sustainable building; and other contracting arrangements. Siegfried in the co-author of the chapter on the subcontract formation in the section focusing on the subcontract document, and Clark is the co-author of the chapter on licensure in the section on insurance, bonding and licensure.

Our firm congratulates Nicholas Siegfried and Michael Clark for their work in helping to make this new volume from the ABA an invaluable resource for construction law practitioners.

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Construction Businesses Are Turning to Factoring to Overcome Short-Term Cash Flow Deficits

March 10, 2014, Posted by B. Michael Clark, Jr.


Thumbnail image for Michael Clark Gort photo.jpgAs I wrote in this blog in September, the construction industry is enjoying a strong recovery in South Florida, but the economic strains of the Great Recession took a heavy financial toll on many contractors as well as their suppliers and subcontractors. With the new projects that are now getting underway come new expenses for materials, equipment and labor, and many construction firms are having trouble meeting the financial obligations that come with taking on large new jobs. For many of these businesses, factoring finance companies offer a viable solution that can help them to overcome these short-term cash flow issues.

Factoring entails the selling of a company's accounts receivable (i.e., invoices) to a third-party that is called a factor at a discount. The factor then collects the full amount from the debtors of the invoices in due course and pays the remaining balance to its client after deducting a commission and other charges. Because of the nature of the construction industry, cash flow tends to fluctuate a great deal based on when projects are started and completed, and invoice factoring enables construction firms to cover their short-term cash needs during periods in which their needs exceed their reserves.

The ability of factors to collect on the invoices that have been assigned to them by their clients is protected by the Florida Uniform Commercial Code. The code provides that once a debtor is notified that the company to which it owes money has assigned the right to receive the funds to the factor, the debtor must remit their payments directly to the factor. If they instead pay the factor's client, they will be required to pay the factor again for the same invoice that it paid to the client.

Factoring is likely to grow in popularity with contractors and other construction industry businesses in today's market. Our construction law attorneys have represented factoring clients, invoice debtors and factors, and we are available to assist with all of the aspects of these financing transactions. We write regularly in this blog about important legal and business issues for the construction industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to receive all of our future articles.


Stuart Sobel: Featured Author in National Publication

Firm shareholder Stuart Sobel is proud to be a featured author of the New Dispute Resolution Strategies for Construction Industry Clients chapter of "Inside the Minds: Construction Dispute Resolution" (Aspatore, 2014 ed.), a resource for professionals in the construction industry.Stuart Gort 2.jpg

Inside the Minds is a series that provides readers with proven business and legal intelligence. It offers insights, expert analysis on an industry, profession, or topic, which helps readers find strategies for success. Each author is selected based on their experience and standing within the business and legal communities. Construction Dispute Resolution provides insider's perspective on solutions to common issues arising on construction projects. Featuring top partners and chairs from around the country, this book discusses important topics such as: benefits and drawbacks of alternative dispute repulsion, appropriate ways to structure contracts, project negotiations and how to avoid disputes.

For more information on the content of the book, or to find out how to purchase a copy, please email Stephanie Bonilla at sbonilla@srhl-law.com.


Construction is Returning in a Big Way

September 12, 2013, Posted by B. Michael Clark, Jr.

In 2013 the Construction Industry in Southeast Florida has continued to see strong growth following the economic crash of 2007. A recent article in the Miami Herald cites statistics from McGraw Hill Construction which illustrate a significant growth in 2013 over 2012 in virtually all sectors of the construction industry. Contracts for future construction rose 38 percent in July from the same period in 2012. Further, in the tri-county area, construction contracts for the period of January through July rose 24% to $3.70 billion in 2013 from $2.98 billion for the same period in 2012.iStock_000004904224Medium.jpg

More than half of the new contracts in 2013 are attributable to residential construction. An article from the Miami Herald published in early 2013 stated that over 100 new high-rise towers were being proposed for the coastal counties of Miami-Dade, Broward and Palm Beach. The growth in high-rise construction is largely attributed to a decline in the inventory of available residential units.

If your organization, whether a material supplier, subcontractor, contractor or developer is fortunate enough to be participating in the resurgence of the construction industry, it is important that you understand your legal rights; whether negotiating a contract, having an issue with your ongoing project or post-completion issues related to payment or performance. The construction attorneys at Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars and Sobel, PA are experienced in all facets of the construction industry and are available to answer questions you may have.


New Statute May Limit the Liability of an Individual Design Professional

July 31, 2013, Posted by B. Michael Clark, Jr.

Effective July 1, 2013 a new Florida Statute may limit the liability of an individual design professional for their negligence. Florida Statute §558.0035 limits the individual liability of a design professional who is employed by a business entity provided that certain conditions are met:Thumbnail image for Michael Clark Gort photo.jpg
First, the contract must be with the design professional's business entity and the claimant (injured party) or another for the provision of professional services to the claimant. Second, the individual seeking protection from liability must not be a named party to the contract. Third, the contract must include a "prominent statement, in uppercase font that is at least 5 point sizes larger than the rest of the text, that, pursuant to this section, an individual employee or agent may not be held individually liable for negligence". Fourth, the business entity must maintain the insurance required by the contract. Finally, the damages must be solely economic in nature; there must be no bodily injury or property damage resulting from the negligence.

§558.0035 is the legislature's response to Florida common law, pursuant to which the individual, as a professional, could be held individually responsible for their negligence. However, the legislature wrote the law in a way which allows the owner to adequately protect itself from design professional negligence. Specifically, the owner should be mindful of the insurance required by the contract, both the type of policy and the limitation of liability. In many cases, professional liability insurance is written on a "wasting" basis, pursuant to which claim handling costs, i.e. attorney and investigative fees, reduce the policy limits. If the contract specifically prohibits such a policy, §558.0035 may not be implicated. Otherwise, an owner could demand higher limits of insurance if §558.0035 is invoked in the contract. If you have questions regarding the effect or interpretation of this statute, or other contract or construction related issues, it is best to seek the advice of counsel.


New ISO Form Alters Coverage Afforded to "Additional Insured"

June 3, 2013, Posted by B. Michael Clark, Jr.


Michael Clark Gort photo.jpgThe Insurance Services Office (ISO), which issues forms widely used in the construction industry, released a new additional insured endorsement form on April 1, 2013 to be appended to Commercial General Liability (CGL) policies. The new form includes a number of provisions of which members of the construction industry should be aware.

Coverage Limited by Contract

The new form provides that both the scope and amount of coverage will be limited to that required by the underlying contract. Therefore, if the policy provides $10 million of liability coverage, but the contract, for example, between owner and contractor requires contractor to provide owner with coverage as an additional insured in an amount of $1 million, the owner is only insured for $1 million irrespective of the limits of the policy. Additionally, if the contract specifically prescribes the scope of coverage which the contractor is to provide that is narrower than the coverage afforded under the policy, the contract scope governs.

Finally, under the new endorsement, coverage is limited to the "extent permitted by law." Consequently, if the indemnity required by the contract is limited or otherwise extinguished for a failure to comply with Fla. Stat. 725.06, insurance coverage may be jeopardized as well.

Insurance related issues are common on construction projects. When issues or doubts exist as to the coverage your firm enjoys, it is best to contact a qualified attorney to review the policies at issue and advise you of the rights you do and do not enjoy.


Florida Supreme Court Limits Economic Loss Rule Only to Product Liability Cases in Ruling on Lawsuit by Community Association Against Insurance Broker

March 18, 2013, Posted by Nicholas D. Siegfried


Nick Siegfried 2013.jpgA 5-2 majority decision by the Florida Supreme Court in the case of Tiara Condominium Association v. Marsh & McLennan limits the legal principle known as the "economic loss rule" only to product liability cases, thereby allowing many claims for breach of contract in the state to be accompanied by tort claims of negligence. The ruling allows the association to proceed with its lawsuit seeking to recover approximately $50 million in damages from its insurance broker, which it claims knew the 42-story oceanfront tower on Singer Island in Palm Beach County was underinsured and failed to tell the association.

The lawsuit stems from the more than $100 million in damages that the luxury condominium tower sustained as a result of two hurricanes in 2004. After settling with the insurance company for $89 million, the association then sued the broker for the remaining balance of the approximately $140 million in repairs, claiming breach of contract, negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, negligence, and breach of fiduciary duty. The trial court in 2009 dismissed the lawsuit, and the association assessed each owner between $110,000 and $150,000 for the repairs and filed an appeal. The Eleventh Circuit Court of Appeals concluded that judgment in favor of the broker was proper as to the breach of contract, negligent misrepresentation and breach of implied covenant of good faith and fair dealing claims. However, as to the negligence and breach of fiduciary duty claims, a matter of state law, the Eleventh Circuit Court of Appeals directed a certified question to the Florida Supreme Court which restated the certified question as follows:

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Does the economic loss rule bar an insured's suit against an insurance broker where the parties are in contractual privity with one another and the damages sought are solely for economic losses?

The majority opinion found that the economic loss rule did not bar the community association's lawsuit, and held that the economic loss rule only applies in the products liability context.

The legal principle of the economic loss rule originated as a means of limiting potentially unbounded losses based on a customer's expected profits from the use of a product that turned out to be defective. The most oft-cited case originating the rule involves a delivery company that sued a truck manufacturer for its lost profits resulting from a truck's defects that caused it to cease functioning. The court ruled that damages for lost profits and for money paid on the purchase price were appropriate under breach of warranty. However, the delivery company could not pursue the same claim in tort since it suffered only economic loss. The court reasoned that contract law was best to resolve economic losses as the parties are able to negotiate remedies for nonperformance. Tort law was more appropriate to address personal injury and damage to other property. Each state addresses the economic loss rule differently and Florida, while initially expanding the economic loss rule, began limiting the economic loss rule to its principled origins. With this decision, the Florida Supreme Court has now returned the economic loss rule to its original application and has limited it to products liability cases.

The dissenting opinion asserts that the majority expanded the use of "tort law at a cost to Florida's contract law." The number of tort claims will likely increase as a party may bring tort claims along with its breach of contract claim and recover remedies that may not otherwise be available under the contract. Our construction law attorneys write regularly in this blog about important business and legal matters for the construction industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to automatically receive all of our future articles.


Firm's Michael Kurzman to Co-Chair, Elisabeth Kozlow to Speak at Construction Defect Process Seminars in Miami May 1 and Orlando May 3

Michael J. Kurzman.jpgFirm partners Michael J. Kurzman and Elisabeth D. Kozlow will be playing important roles at the Construction Defect Process full-day seminars taking place in Miami on Wednesday, May 1, and in Orlando on Friday, May 3. Michael will be serving as the co-chair and one of the speakers for these seminars, which qualify for 7.5 hours of continuing education elisabeth kozlow.jpgcredits for Florida contractors, engineers and attorneys, and 6.5 AIA LUs for architects. Elisabeth will also be one of the featured speakers, and she will be presenting the first session on the morning of the event titled "Construction Contract Terms Relevant to Warranty and Defect Claims."

All of the sessions at this seminar will focus on the latest developments and evolving solutions in construction defects. They will cover how to minimize the risk of construction defects, deal with them when they occur, and assess insurance coverage needs.

Michael will introduce Elisabeth and conduct the opening remarks for the seminars together with his fellow co-chair Miroslav "Misha" Mladenovic, PE, of M2E Consulting Engineers. Elisabeth will then focus her discussion on methods for avoiding warranty and defect problems before they occur, the terms to consider in construction contracts, typical and atypical contract forms, and a number of insurance considerations. In the afternoon, Michael and Misha will conduct a session titled "The Repair Process," which will focus on the risks associated with repair work, claims of lien for non-payment of repair work, insurance, and surety liability for repair work.

The Miami event on May 1 will take place at the Hampton Inn & Suites, 50 S.W. 12th Street in the Brickell area, and the May 3 seminar will take place at the Crowne Plaza at 304 West Colonial Drive in Orlando. For additional information and online registration, which ranges from $327 to $525, visit www.TheSeminarGroup.net or call toll-free at 1-800-574-4852.


Florida Supreme Court Ruling Affirms Fifth DCA Decision That "In Pari Delicto" Defense Is Not Available to Unlicensed Contractors

March 1, 2013, Posted by Nicholas D. Siegfried


Nick Siegfried 2013.jpgThe Florida Supreme Court recently issued a decision that has significant implications for contractors, subcontractors and property owners in Florida. On January 24, 2013, the court ruled in the case of Earth Trades, Inc., et al., v. T&G Corporation that Florida law precludes an unlicensed subcontractor from employing the common law defense of in pari delicto - referring to equal wrongdoers - by arguing that the general contractor knew or should have known that the subcontractor did not hold the required state licenses for the work to be performed.

As the general contractor, T&G Corp. subcontracted with Earth Trades to perform site work on a parking garage construction project. When T&G stopped making payments, Earth Trades sued T&G for breach of contract for nonpayment. T&G counterclaimed claiming that Earth Trades breached the contract and was unlicensed, therefore its breach of contract claim against T&G was barred under Florida Statute 489.128 which provides that: "As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor."

Earth Trades responded by arguing that T&G should be barred from enforcing the construction contract because it knew or should have learned during the performance of the work that Earth Trades did not hold the required state license. As a result, the subcontractor claimed that T&G was equally at fault and could not recover against Earth Trades because both parties stand in pari delicto.

The trial court in Orange County, Fla., rejected Earth Trades' arguments and granted the motion for summary judgment by T&G, and the Fifth District Court of Appeal affirmed the decision. Because this decision expressly and directly conflicted with the opinion by the Third District Court of Appeal in the case of Austin Building Co. v. Rago, Ltd. in 2011, the Supreme Court of Florida had jurisdiction to review the case.

Fla supreme court 1.jpgThe Supreme Court upheld the Fifth DCA's opinion, noting that Section 489.128, Florida Statutes plainly places the onus for unlicensed contracting on the unlicensed contractor. The court concluded that the state legislature amended the statute in 2003 and stated that its intent was to "clarify that the prohibition on enforcement of construction contracts extends only to enforcement by the unlicensed contractor." The defense of in pari delicto requires that the parties be wrongdoers of relatively equal fault. Under Section 489.128, Florida Statutes, the fault of the person or entity engaging in unlicensed contracting is not substantially equal to that of the party who merely hires a contractor with knowledge of the contractor's unlicensed status. Accordingly, even if it was proven that T&G knew Earth Trades was unlicensed, such knowledge, as a matter of law, would be insufficient to place the parties in pari delicto. The Supreme Court disapproved of the Third DCA's decision in the Austin Building case to the extent that it held that under section 489.128, a party's knowledge that a contractor is unlicensed places the parties in pari delicto.

This decision is yet another reminder of the perils of working without the required state licenses for contractors and subcontractors in Florida. Our construction law attorneys and I will continue to monitor and write about important court rulings for the construction industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to receive all of our future articles.


Stuart Sobel Wins Court Decision for Layne Heavy Civil Involving its $79.3 Million Bid for Construction of Cudjoe Regional Wastewater System in Florida Keys


Stuart H. Sobel.JPGThe firm's Stuart Sobel prevailed in securing a final judgment this week in Monroe County circuit court in favor of his client Layne Heavy Civil, Inc. After a rigorous selection process, Layne was chosen by the Florida Keys Aqueduct Authority to build the Outer Islands Cudjoe Regional Wastewater System, the largest ever sewer construction project in Monroe County. Layne's $79.3 million winning proposal was $6 million less than that of Douglas N. Higgins, Inc. Higgins sued the Aqueduct Authority in Monroe County Circuit Court, seeking to invalidate the award to Layne and to have the contract awarded to Higgins. Layne, through Sobel and his local co-counsel, Barton Smith, intervened in Higgins' challenge of the Aqueduct Authority. Monroe County also intervened to support the award to Layne.

Higgins' lawsuit alleged that Layne's proposal did not meet all of the bid requirements and "was non-responsive to the Request for Proposal" because it lacked unit prices, cost and resource loaded schedules, preliminary designs and pertinent financial information. The suit alleged that Aqueduct Authority's evaluation committee overlooked material deviations from the request for proposals and "disregarded its own evaluation form and procedures."

FKAA_logo.jpgIn a one-day trial, Sobel, Smith and the Aqueduct Authority's counsel, Fred Springer, successfully demonstrated to the court that any irregularity in Layne's bid was minor and was waivable by the Aqueduct Authority for the benefit of the taxpayers, pursuant to the law and the contractual reservation of the Authority's right to waive irregularities in the Request for Proposal. In addition, they demonstrated that Higgins' proposal suffered from the same types of infirmities that Higgins alleged against Layne. The court's final judgment found that Higgins failed to prove that Layne's bid was non-responsive, failed to prove that Higgins' own bid was responsive, failed to prove that the Aqueduct Authority's award of the contract to Layne violated applicable law, and failed to prove that the Aqueduct Authority was obligated to award the contract to Higgins. Accordingly, the judgment was entered in favor of Florida Keys Aqueduct Authority, Monroe County and Layne Heavy Civil.

The lawsuit could have jeopardized $30 million in state funding for this important project. Monroe County received the $30 million last year from the state legislature, but the appropriation stipulated that construction contracts for the treatment system must be signed by March 1. The county was concerned that the lawsuit could have nullified the contract and, as a result of the ensuing delay, negated the state funding.

layne logo.jpgLayne is a leading supplier of infra-structure with a world-wide reputation for its high quality work. Sobel says that the successful defense of this bid protest was especially satisfying given the stature of his client and the extraordinarily compressed time period for the preparation and presentation of Layne's defense. The entire matter was resolved in less than one month from the time the bid protest was filed.

Our firm is pleased that Stuart and his team were able to validate the rights of this important client.


Michael Clark Speaks at ABA Forum on Construction Industry's Mid-Winter Meeting


Michael Clark Gort photo.jpgOn January 31, 2013, the firm's Michael Clark spoke as part of a three-person panel during the American Bar Association Forum on the Construction Industry's Mid-Winter Meeting. The seminar, titled "It's Miller (Act) Time," provided an overview and in-depth discussion of both the Federal Miller Act and Florida's "Little Miller Act."

Michael discussed how both the "big" and "little" Miller Acts require general contractors to secure payment and performance bonds for public projects with a contract price of over $100,000 ($200,000 for municipal projects in Florida). The purpose of the performance bond is to protect the government by providing an added layer of security to ensure the work is performed pursuant to the contract. The purpose of the payment bond is to protect the subcontractors, suppliers and laborers, by providing them another layer of security upon which they can rely for payment.

Both the federal and state Miller Acts have requirements with which one must comply both at the commencement of work and prior to making a claim. Failure to comply with those requirements may result in a claimant being unable to recover. Further, both Miller Acts have nuances as to what types of entities can and cannot make claims and what damages are recoverable.

Prior to commencing work or providing materials to a government project, a subcontractor, laborer or supplier should seek legal counsel to ensure its rights are protected.

If you have any questions about the Federal Miller Act, or its Florida counterpart, contact Michael Clark directly at mclark@siegfriedlaw.com or 305.460.2964.


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Report in Today's Daily Business Review: Stuart Sobel Secures $58.5M Settlement for PortMiami Tunnel Builder


Sobel Melendi Photo.JPGStuart Sobel's work in securing a $58.5 million settlement for the builder of the new PortMiami tunnel was the subject of a front-page article in today's Daily Business Review titled "Dispute Resolution Board Reaches Rapid Settlement with PortMiami Tunnel Builder." The article written by the newspaper's Steve Plunkett reads:


"Imagine securing a $58.5 million settlement from a dispute panel that bans lawyers from the room.

That's the scenario Coral Gables attorney Stuart Sobel faced while representing Bouygues Civil Works Florida Inc., which is constructing the $1 billion tunnel that will connect PortMiami to I-395.

It didn't surprise Sobel -- he helped set up the tunnel's Technical Dispute Resolution Board when his client won the project."

The report chronicles how Stuart devoted many hours to preparing for the hearings on liability before the Technical Dispute Resolution Board outside of normal schedules.

"My work was at night, trying to anticipate the issues that were going to be discussed the next day," he says in the article.

The article reads:

"For the board presentation, Sobel put together PowerPoint presentations for his witnesses to use and coached them on how to answer the panel's anticipated questions. The board heard evidence for 13 days before making its decision largely in favor of Bouygues."

The article also notes that Stuart "used an early variation of a dispute resolution board for the Adrienne Arsht Center for the Performing Arts, which opened in 2006." He was involved in the negotiation of that contract on behalf of the contractor.

The article explains that the tunnel dispute was over extra work for grouting the limestone as the company dug. "We determined there was a changed condition. The geologic conditions were different than what we'd been led to expect," Stuart notes.

Stuart is also quoted discussing the merits of using Technical Dispute Resolution Boards for major construction projects. "The concept is you have construction people dealing with construction problems," he says:


"Sobel said having the dispute panel of construction laymen is much quicker than going to arbitration because the discovery process in arbitration could take eight to 10 months. Along with the added time would be added attorney fees.

"That's why you have tunnelers as judges," he said.

Sobel said he urges his clients planning malls, apartment houses, courthouses and other large construction projects to consider establishing similar boards. The tunnel panel meets quarterly whether or not there are disagreements.

"Dispute resolution boards for complex projects, in my view, are absolutely the way to go," Sobel said. "At the first whiff of a problem you bring it to the dispute panel."

Stuart's work was geared toward obtaining a favorable ruling on his client's entitlement to compensation. Thereafter, the client negotiated the financial resolution directly with the Florida Department of Transportation.

On behalf of all of the attorneys and professionals at our firm, we congratulate Stuart on achieving this fantastic result for the PortMiami tunnel builder that caught the attention of the Daily Business Review.



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Report in Daily Business Review: Firm Wins Appeal Before Third DCA in Dispute Between Developer, Condo Association Over Ownership of Parking, Storage Spaces


3rd district court of appeal.jpgIn December, firm partners Helio De La Torre and Laura M. Manning-Hudson, together with of-counsel attorney H. Hugh McConnell, prevailed in their appeal on behalf of the developer of the 28-story Courvoisier Courts condominium tower on Miami's Brickell Key before the Third District Court of Appeal. The appellate court found that the lower court erred when it entered a Final Judgment requiring the developer to relinquish to the association all of the parking spaces and storage areas that it assigned to an unsold penthouse prior to turning over control of the property to the association.

The appellate court's decision in the case of Courvoisier Courts, LLC v. Courvoisier Courts Condominium Association, Inc. hinged on the association's declaration of condominium, which states that the association would receive all parking spaces and storage areas that are left unassigned after the developer has sold all of its units. The panel found that the parking and storage spaces in question did not become the property of the association upon turnover, and the developer retained the right to assign the exclusive use of these limited common elements until such time as it had sold all of its units.

dbr logo.jpgA report on the ruling from the Daily Business Review on December 27, 2012 quoted De La Torre indicating that "The lower court ruling said basically that all of the assignments made since the turnover were invalid. [The appellate decision] means we get our parking spaces back, [and] it's a very significant opinion." He, Manning-Hudson and McConnell believe that the trial court's interpretation of the condominium's declaration in this case could have set a challenging precedent for condominium developers in Florida.

Click here to read the Third District Court of Appeal's opinion for the case.


Steven Siegfried, Lisa Lerner and Stuart Sobel Named to The Best Lawyers in America Peer-Reviewed Listing

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The attorneys and professionals of Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. would like to congratulate partners Steven M. Siegfried, Lisa A. Lerner and Stuart Sobel on being selected for inclusion in the 2013 edition of the peer-reviewed Best Lawyers in America listing.

Best Lawyers is the oldest and one of the most respected peer-review publications in the legal profession. Its lists are compiled by conducting peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. Inclusion in the 2013 edition of The Best Lawyers In America is based on more than 4.3 million detailed evaluations of lawyers by other lawyers. Additional information is available at www.bestlawyers.com.

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Stuart Sobel's article in the October 24, 2012 Daily Business Review: Avoiding Disputes Altogether Saves Money, Time, Relationships


Sobel 2010.JPGThis article by Stuart Sobel appeared in the Daily Business Review on Oct. 24:

Board of Contributors: Avoiding Disputes Altogether Saves Money, Time, Relationships

By Stuart Sobel

Much has been written about alternative dispute resolution techniques, such as arbitration or dispute review boards. They are alternatives to traditional litigation that are often viewed as preferable to litigation in some respects. They may be more private, final and streamlined, for example.

But they can also be inferior to litigation. There is a limited ability to discover opposing evidence and, because of limited appeal, mistakes cannot easily be remedied.

And like litigation alternative dispute resolution still only comes into play after a dispute has ripened.

Traditional and alternative dispute resolution both take a toll on the clients who spend time and money with lawyers instead of their business. They also damage the clients' relationship. It is not likely that a dispute, played out through any resolution process, will leave the parties willing to continue doing business in the future.

Making matters worse, dispute resolution has become increasingly uncertain.

Courts have been clogged with foreclosures, distracting judges from devoting the time necessary to properly consider and adjudicate complex business disputes. Court clerk budgets have been slashed, making it more difficult for the court staff to have files up to date and hearing times promptly available.

Courts have more matters and less staff with which to address their increased case load. Results become more erratic, slower and less predictable. At its heart, an effective dispute resolution process must be predictable; a result -- or at least a range of outcomes -- given a set of facts should be likely.

Unfortunately, that is no longer the case in too many instances.


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