Steve-Siegfried-2013-srhl-lawSteven M. Siegfried, our firm’s founder who launched the practice 40 years ago in 1977, was the subject of a “Profiles in Law” article published by the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which appears in today’s edition of the newspaper, chronicles his career and highlights his achievements as a construction law specialist, professor and writer for the last four decades.

The profile article, written by DBR reporter Samantha Joseph, reads:

Steven M. Siegfried wrote the book on construction law. The literal book. The one the American Bar Association published in 1987 as an early nod to a then-fledgling practice area.

His work, “Introduction to Construction Law,” became a standard reference for real estate and construction lawyers across Florida for the past three decades. Over several incarnations, it helped establish the Siegfried Rivera Hyman Lerner De La Torre Mars & Sobel partner as a foremost authority on a specialty he’s long championed.

The article notes that Steve’s other publications focus on construction lien law, construction defects, condominium warranty claims and the statute of limitations, culminating with his authoring of “Florida Construction Law” by Aspen Publishers in 2001.

dbrlogo-thumb-220x41-94239It states that his concentration on construction and community association law began in 1976, when he foresaw that the real estate sector would become a pillar of the region’s economy that would require highly specialized practitioners.  The article notes that his firm “will celebrate its 40th anniversary this year. It employs 46 attorneys concentrating on real estate, construction, community associations, and property insurance . . . from offices in Miami-Dade, Broward and Palm Beach counties.”

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LindseyTLehr-200x300The firm’s Lindsey Thurswell Lehr authored a guest column that appeared in the “Board of Contributors” page of today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titlted “Ruling Reinforces Need to Abide by Contracts in Construction Disputes,” focused on a recent Florida appellate court ruling finding that property owners which forgo the contractual mechanisms for resolving construction disputes will not prevail in the state’s courts.  Her article reads:

Strictly adhering to the modus operandi for addressing and resolving disputes that is codified in construction contracts is essential to prevailing in any resulting litigation.

The Florida Third District Court of Appeal recently reinforced the obligation of construction defect litigants to adhere to the terms of their contract, finding that property owners which forgo the contractual mechanisms for resolving disputes will not succeed in Florida’s courts.

The ruling by the Third DCA in the case of Magnum Construction Management v. City of Miami Beach relieved the contractor of liability for alleged safety concerns with a playground that it installed at the city’s South Pointe Park. The appellate panel ruled that the city did not give the contractor the opportunity to fix the purported issues with the playground as required under its contract. Instead, the court stated that the city replaced the playground in its entirety without considering that the safety concerns could have been corrected by the contractor.

dbrlogo-thumb-220x41-94239The court’s decision in this case reinforces the importance of abiding by all contract terms and requirements in construction disputes. Construction contracts often allow the contractor which performed the work to have the opportunity to fix and cure any purported problems and defects. If a property owner ignores this contractual stipulation, as the city of Miami Beach appears to have done in this case, Florida’s courts are very likely to rule against them.

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This year our firm is celebrating the 40th anniversary of its founding.  In 1977, Steven M. Siegfried had the vision to bring great lawyers and supporting staff together to focus on every aspect of Florida’s burgeoning construction, community association and real estate industries.

As Florida has grown, so too has SRHL.  Maintaining our focus, we are now 46 attorneys in our three South Florida offices.  As required by the evolution of the industries in which our clients excel, we have incorporated expertise in insurance, creditors’ rights, and the commercial transactions and disputes that relate to these core competencies.  We also have developed an expertise in aircraft transactional work.

As we reflect on our 40 years of service in these vital industries, we take pride in having played significant roles in some of the most important and challenging projects throughout South Florida and the nation.  We look forward to furthering our role as one of the most trusted sources for legal counsel and representation in these fields in the years to come.

Steve Siegfried 2013 srhl-lawFirm partners Steven M. Siegfried, Stuart Sobel and Berenice M. Mottin-Berger were featured in an article about their work on behalf of one of the firm’s construction clients that appeared in today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The report, which was titled “Caribbean Construction Firm Scores $4M Judgment,” chronicles the highly contentious litigation and arbitration that led their securing a $4.3 million judgment against DeVry Education Group (NYSE: DV) for Moorjani Caribbean Ltd., a Barbados-based construction company.  The article reads:

Stuart Sobel 2013-thumb-180x270-86799Coral Gables lawyers won a $4.3 million award against a subsidiary of for-profit college company DeVry Education Group in what they say was one of the nastiest arbitration battles they’ve ever fought.

Barbados-based construction company Moorjani Caribbean Ltd. sued over alleged underpayment for the construction of student housing and classroom projects at DeVry’s St. Kitts veterinary school.

Although both parties admitted some aspects of their work relationship was relaxed, with unsigned contracts and loose deadlines, the father-and-son construction company claimed it submitted detailed accounting for both projects and spent years trying to get payment before filing suit.

DeVry Medical International Inc. fought back with counterclaims, alleging it spent more than $1 million fixing design and construction defects in Moorjani Caribbean’s work on the student housing project.

BerenicMottinBergerBut arbitrators found DeVry made improvements to the residence hall so that it could qualify as a place of refuge during a hurricane, not because of deficient construction.

By the time the 2009 bills for the two projects came to the arbitration panel this year, interest and attorney fees made the award much larger than it might have been, Moorjani Caribbean’s lawyers said. Interest on the award continues to grow at a rate of about $593 per day, according to the Aug. 19 final arbitration award.

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Michael Clark Gort photo-thumb-160x240-13551Firm partner B. Michael Clark, Jr. authored an article that appeared in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Ruling Creates Opening for Property Owners to Escape from Liens,” focuses on the implications of a recent ruling by the Second District Court of Appeal that has created a potential new opening for property owners to quickly wipe away the lien rights of unwary lienors.  Michael’s article reads:

The decision came in the case of Georgia Hiller v. Phoenix Associates of South Florida. Hiller, a homeowner, contracted Phoenix for work on her home and then allegedly failed to pay. Phoenix recorded a lien against her property, and Hiller responded by posting a transfer bond to remove the cloud of the encumbrance from the property.

Hiller proceeded to record a notice of contest under section 713.22(2), shortening the time frame for Phoenix to commence an action against the transfer bond to 60 days.

The contractor had already filed a complaint against Hiller to foreclose the lien as well as for breach of contract and unjust enrichment. However, despite having notice of the transfer and the contest, it failed to commence an action against the surety within the 60-day deadline. Instead, after the passage of more than 60 days, it filed a motion to amend its complaint to add the surety of the transfer bond to the suit.

dbrlogo-thumb-220x41-94239Hiller, presuming that the transfer bond automatically extinguished after the 60 days elapsed, filed a motion for the release of the transfer bond, which was denied by the trial court and became the basis for her appeal.

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JasonRodgers-DaCruzFirm partner Jason M. Rodgers-da Cruz moderated and co-presented a session titled “Developing and Presenting Expert Testimony: The Long View” for the American Bar Association’s Forum on Construction Law.  The seminar took place on April 29, 2016 as part of the organization’s Division 1 breakfast series.

Jason’s presentation provided participants with an overview on how to identify potential issues before they unfold, the selection of the appropriate expert at the beginning of the dispute, and how to navigate expert testimony to help ensure that both the client’s position and the expert’s analysis are properly presented.

Our firm congratulates Jason for sharing his insights on this important topic with the members of ABA’s Forum on Construction Law.  Click here to learn more about the Forum’s Division 1 breakfast series and its upcoming events.

Stuart Sobel 2013-thumb-180x270-86799Firm shareholder Stuart Sobel authored a guest column that appeared in the May issue of Construction Executive magazine, one of the leading construction industry trade publications in the country.  His article, which was titled “Dispute Review Boards: An ADR Technique That Works,” focused on the use of DRBs for major projects as an effective means to avoid or resolve disputes that may arise during construction.  Stuart’s article reads:

Disputes are endemic to the collaborative nature of construction. It seems prudent to anticipate the disputes, even where the precise nature of the dispute is unknowable, and create a structure for proactively addressing and resolving them when they do arise. Traditional dispute resolution, whether arbitration or litigation, when invoked at the end of the project, takes place too late to save it or get it back on track. Instead, proactive onsite real-time dispute resolution is warranted to protect working relationships, cash flows and schedule progress.

Arbitration has become the preferred alternative dispute resolution forum for resolving construction disputes because it is private, streamlined and presided over by experienced construction professionals.

However, just as with litigation, arbitration only comes into play after a dispute has ripened. The arbitration process usually extracts a considerable toll on the project participants through damaged relationships and expenses. The parties involved are very unlikely to continue doing business together in the future. In addition, discovery in arbitration proceedings is now wider, longer and more expensive, and its growing resemblance to litigation has become unmistakable. Thus, despite its reputation as a cheaper alternative to litigation, arbitration has become more expensive as the process permits more litigation-like discovery, with attendant administrative costs and arbitrators’ fees.

Instead, consider the scenario where an independent person or board, respected by all project participants, is designated in the operative construction contracts to stay abreast of the design and construction and to attend and observe all pertinent meetings (owner/architect/contractor meetings, change order meetings and even important contractor/subcontractor meetings). Through this process, the dispute resolution neutral or, where there is more than one, the Dispute Resolution/Review Board (DRB), can quickly understand theConstruction-Executive-Logo nature and genesis of disputes that are blossoming — before they slow or stop the construction progress.

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StuartSobel2013.jpgThe firm’s Stuart Sobel has once again written an article that appeared in the annual special report on Alternative Dispute Resolution published by the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. Stuart’s article, which was published in today’s edition of the DBR and also appeared in Texas Lawyer and the Daily Report (Atlanta), focused on the use of formal mediation proceedings to resolve claims involving catastrophic construction accidents. Earlier this year he represented Miami Dade College in a $33.5 million mediated settlement that included 22 defendants for the collapse of a parking garage during construction.

Stuart’s article reads:

Tragically, a collapsed structure introduces personal injuries, wrongful deaths, economic losses and disappointed expectations on top of the impact to the completion of the project. As such, any formal dispute resolution, whether it be arbitration, litigation or several of both types of proceedings, will involve many parties and claims as well as many issues related to each party and each claim.

Add to this, many parties will have insurance available, but the coverage may be offered in layers, with underlying and surplus policies introducing even more grist for the dispute mill. Insurance policies may have several of the construction participants as additional insureds, and they may also have subrogation waivers and other nuances that must be considered in working toward a just resolution. Additionally, there will also likely be performance bond sureties that will have indemnity rights to bring to the party.

Consider then what the trial or arbitration hearing will look like. How long will it take to select a jury given the number of peremptory challenges? How long will a simple side-bar in a jury trial take? How long do depositions take to conclude, with 20-plus parties each having the opportunity to question important lay and expert witnesses? And, how much will all this cost?

How then best to manage this not so rare occurrence? At the risk of being accused of blasphemy, the answer is to run a mediation track parallel to the formal dispute resolution track.

Statistics tell us that nearly 99 percent of all filed lawsuits are settled. The settlement rate of arbitrations is not quite as high, but we should take some solace in the fact that, in all likelihood, a well-managed mediation process can also resolve our catastrophic construction claim.

So then, what is a well-managed mediation process? It must begin with the recognition that mediation is, itself, a process, not an event. Mediation is most effective when the parties understand the process, which calls for everyone to be brought together with a common goal — settling the claim — even if the goals diverge when each party wants someone else’s money to be used. Still, with everyone in the room, the opportunity for cooperative compromise in furtherance of the common goal becomes possible.

His article concludes:

When successful, mediation also allows for creative solutions that may not be available through formal dispute resolution. Correction of work, rather than the payment of money, may prove an attractive piece of a settlement. Resolutions may be kept confidential and private, while a jury verdict is never confidential.

Successful mediation requires a clear vision of what success will look like on paper. With so many parties, claims and issues, documenting a settlement reached in principle presents its own challenges.

Will all the insurers join in the settlement, disclosing their contributions and submitting to the jurisdiction of the court for the purpose of enforcement? If not, what default mechanism will work best to ensure that all of the parties pay, so that the plaintiff is not left with some paying, some not, and questions about collectability? Consider bringing a draft settlement agreement, leaving numbers blank, to the mediation so that it too can be negotiated, rather than leaving that task, with its own hazards, for the days or weeks after the dollar settlement is achieved.

Mediation provides parties the opportunity to see how their presentation of their case is received by others, and also to see their opponent’s case articulated in a manner that allows for more objective consideration. The process enables principals to sit across from each other with the ability to control the outcome of the dispute — as opposed to placing their fate in the hands of a judge, a jury or a panel of arbitrators. That control is appealing, and it has led the construction industry to embrace mediation as an important tool for the resolution of disputes involving construction catastrophes.

Our firm congratulates Stuart for sharing his insights into this important topic with the readers of the Daily Business Review, Texas Lawyer and the Daily Report. Click here to read the complete article in the DBR’s website (registration required).

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JCristeswearingin.jpgThe mentoring of young lawyers is paramount to their future success in the profession, and our firm is proud of our ongoing mentoring of law school students and graduates as law clerks with the firm before they become newly minted attorneys.

John I. Criste and Berenice M. Mottin-Berger are our firm’s latest law clerks to be admitted as members of The Florida Bar. Both of them worked very closely with partner Stuart Sobel, who was honored to preside over their swearing in ceremony at our offices last week.

We are also very pleased to welcome John and Berenice as our firm’s newest associate attorneys. In addition to focusing on commercial litigation, they will both continue to work with Stuart as important new additions to our construction law practice group, and Berenice will also focus on community association law.

BMottinswearingin.jpgBoth John and Berenice graduated with cum laude honors from the University of Miami School of Law in May 2015. They were trial partners for the law school’s Litigation Skills Program and the John T. Gaubatz moot court competition. John earned his bachelor’s degree from Stanford University in 2011, and Berenice earned her bachelor’s degree from the University of Miami in 2010.

On behalf of everyone at our firm, we congratulate John and Berenice on their admissions to the bar and promotions from law clerks to associates.

A recent editorial by the Miami Herald commemorated the one-year anniversary of the opening of the PortMiami Tunnel by highlighting the impact that this remarkable project has already made.

The editorial reads:

. . . it has been largely smooth sailing for the $643-million tunnel, which came in $90 million under budget — a feat unheard of for such massive projects. “We did it without the drama,” Christopher Hodgkins, CEO of Miami Access Tunnel, told the Editorial Board on Monday.

Built through an innovative public/private partnership, the tunnel is operated and maintained by Miami Access Tunnel, which also built the facility through a contractor, the French firm Bouygues — all with the help of a German-built tunnel boring machine.
In its first year, the tunnel has diverted 80 percent of the street-clogging cargo trucks headed for the port away from downtown Miami. Thousands of cruise-ship passengers have done the same. Now passengers landing at Miami International Airport don’t even have to get on Biscayne Boulevard. They can travel on state roads 836 or 112 and connect to I-395 east to the tunnel, which spills out at the port.

MHerald2015.jpg“The tunnel has been a great success,” Mr. Hodgkins said. “We have changed the quality of life in downtown Miami.”

Mr. Hodgkins is absolutely correct, as more than 14,000 vehicles are now using the tunnel every day and bypassing the city’s downtown streets. He is also right about the fact the builder was able to avoid “the drama” that typically accompanies construction projects of such a massive scale, and I was pleased to have helped tunnel builder Bouygues Civil Works Florida to do so when it encountered unexpected site conditions that required additional work and funds to overcome. The issue could have created a lengthy impasse during construction, and my work as the lead legal counsel for the builder helped the company to secure a $58.5 million settlement that was the subject of a front-page article in the February 5, 2013 edition of the Daily Business Review titled “Dispute Resolution Board Reaches Rapid Settlement with PortMiami Tunnel Builder.” The article read:

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 chronicled how I 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,” I was quoted in the article, which continued to read:

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.

dbrlogo.jpgThe article explained 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,” I noted.

I was 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,” I concluded.

I am very proud of our firm’s work in enabling the tunnel builder to quickly and fairly resolve this matter and avoid any delays during construction. The award-winning tunnel is emblematic of the potential for public/private partnerships, which are expected to continue growing as the predominant paradigm for such large scale infrastructure projects in the years to come.