tampa attorney Archives - Wetherington Hamilton, P.A.

Recent Changes to Florida’s Construction Lien Statute and Public Bonded Projects – Changes to Florida Statute Section 255.05

October 10, 2019/in Articles, Construction Law/by Ted Hamilton

Recent Changes to Florida’s Construction Lien Statute and Public Bonded Projects – Changes to Florida Statute section 255.05

By: Theodore J. Hamilton, Esq.

The Florida law for a subcontractor, equipment lessor or materialman to perfect a claim on a public construction bond recently changed. Law of Florida 2019-94: see link here: http://laws.flrules.org/2019/94 Florida Statute section 255.05 governs the process to be followed to claim on a bond on a public construction project with a public entity in the State of Florida. This section does not apply to Federally Bonded projects. The changes focus primarily in two areas:

The new law requires the Notice of Non-Payment to be signed under oath before a notary;
The new law adds a penalty of non-enforce-ability if it is determined the notice of non-payment is willfully exaggerated in its amount; and
The new law confirms that the time frame for serving the notice of non-payment for rental equipment is 90 days after the last date the rental equipment was on the job site and available for use.

The Notice of Non-Payment must now be under oath.

The new Florida Statutes 255.05 provides a form of a Notice of Non-Payment. This form must now provide for a notary to confirm that the person signing the Notice did so under oath. The new form must be “substantially” followed and must include the oath. Without the required elements the claimant risks making the notice invalid.

The new law adds a penalty of non-enforcement if the notice of non-payment is willfully exaggerated in its amount.

The Notice of Non-Payment must be accurate. To be fraudulent the Notice would either be (1) willfully exaggerated as to the amounts due; (2) willfully include a claim for work not performed or materials not furnished; or (3) prepared the notice of nonpayment with willful and gross negligence, which results in a willful exaggeration. Ultimately, the notice needs to be accurate. This new provision will give owners a defense should the Notice contain willful errors.

The new law confirms the time frames for an equipment rental supplier to serve the notice of non-payment.

For equipment rental suppliers, the new statutory changes make it 100% clear that the notice of non-payment must be served no later than 90 days after the last date the rental equipment was on the job site and available for use. Thus, if the equipment is on the site, but broken down, the 90 days would run from the date it was last usable. These changes, clarify some ambiguities created by conflicting decisions in the Florida Courts as to the last day available to serve the Notice in such a situation.

Conclusion:

This is just a brief summary and not a complete review of each situation. It highlights one of the changes in the last year to the Construction Lien provisions in Florida. For further information contact our office.

Should I Pick My Lawyer from a Billboard? Practical Advice on How to Pick a Lawyer

August 29, 2017/in Articles, General, Litigation/by Ted Hamilton

We have all seen them, the giant billboard that says “Aggressive for You”; “Make your wallet fat with us”; “Over 150 million recovered for victims”; or “Just Because You Did It, Doesn’t Mean You’re Guilty”.

Now it may be hard to believe, but at least in Florida, the Bar Association approves each and every billboard you see for its truthfulness and accuracy. Thus, a billboard cannot misrepresent a lawyer’s experience or credentials. It can’t inflate the truth and it must be honest. Unfortunately, beyond these basic approval criteria, lawyer ads can say whatever gets you in the door. So how do you choose a lawyer?

First, determine the type of legal issue you are facing. Just as in medicine, there are general practitioners and then there are specialists. The lawyer you currently deal with may have different types of lawyers’ in the firm. As a result, they may have the ability to handle varied types of law. Our firm for example has an estate planning and probate lawyer as well as a real estate lawyers. Although these two types of law might cross at times, the laws governing these areas of law is definitely different. As a result, the lawyer you need needs to practice in the area you need help in.

Second, if you know a lawyer, trust them and like them, ask them if they handle your type of matter. For example, if you call our office with a family law problem, we will tell you we don’t handle family law but we can refer you to a family law attorney. However, if you call our office for an estate plan, we have an excellent estate planning attorney in our office and I will connect you to her. If you call about a litigation matter, I might handle it or I might have an associate handle it depending on the complexity of the issue. If you don’t know a lawyer, you can check the internet and review sources such as www.Lawyers.com and www.martindale.com . You can also check reviews on Google.

Third, determine your budget. The pricing of lawyers varies greatly depending on the type of matter and the complexity of the issue. Even today, most lawyers bill by the hour. Very specialized matters such as tax appeals, benefits law issues or securities law issues, require a specialized attorney who will likely charge more. In Tampa, the rates for these types of attorney’s at this time runs anywhere from $375 per hour to over $500 per hour. As a general matter, larger firm prices are more than smaller firms or solo attorneys. Finally, you might have heard the slogan “you pay nothing unless you recover”. This is basically what is called a contingent arrangement. You don’t pay the lawyer unless they collect. This type of fee arrangement works best in the personal injury area where there is insurance coverage. However, our firm also does collections on a contingency basis. Thus, if you have a judgment to collect, our firm will often handle the collection of a judgment or suit to collect based upon a percentage of the recovery.

Finally, ask questions. Check the internet. Check the Florida Bar or your local bar to see if any grievances have been filed against the lawyer. These types of checks can help narrow down your choices and ensure you make the best decision. Also, if your not happy with your lawyer, make a change. There are over 100,000 lawyers in Florida. If yours is not doing the job for any reason, you certainly have the right to chose someone else.

Wetherington Hamilton founding attorney, Theodore J. Hamilton, has over 20 years of experience in handling real estate transactions and litigation. Attorney Hamilton has particular experience in matters involving complex litigation and complicated real estate matters having represented title insurance companies and individuals throughout the state of Florida. He can be reached by phone at (813) 676-9082 or via email at TJH@whhlaw.com.

The Importance of a Work Life Balance: An Attorney’s Perspective

May 13, 2016/in Articles, General/by Ted Hamilton

Attorney Work Life Balance Having been a member of the Florida Bar since 1991, and having practiced in various areas of law, I fully understand and take seriously the commitment of time and resources required in order to be an effective and successful attorney. Preparation is key if one expects to have a chance of “winning” and effectively representing one’s client at any hearing. I pride myself in my work ethic and preparation for each hearing that I attend, no matter how much time for preparation may be required. As attorneys, we do not create nor do we have control over the facts of any given case, but we do have control over our preparation and understanding the facts as they relate to the law for each and every case. As an attorney, a wife and mother, I know that this type of preparation requires sacrifice at times, but the rewards are well worth it! Having said all of that, it is important to me as an attorney, to be able to balance my work and home life.

May and June are extremely busy months for anyone who has school-aged children. Summer plans are being finalized; students have awards ceremonies, performances, sports banquets, and end-of-the-year events of all kinds. The list seems endless. In order to be able to accomplish everything, a great deal of planning and coordination is required. It is a given that effective time management plays an important role in obtaining and maintaining a balance between work and home life; however, there is more to this equation.

So how is it possible for anyone, whether they have children or not, to be an effective attorney while balancing life outside of work? First and foremost, no one can do everything alone. As an attorney, it is critical to have the support of competent legal assistants and paralegals. Without knowledgeable and effective legal assistants, it would be difficult at best to successfully balance home and work, while successfully representing one’s clients. At Wetherington, Hamilton, P.A. our support staff is second to none. This fact alone makes it possible to for our attorneys to maintain balance while effectively representing clients and obtaining the best results possible.

In addition, the firm philosophy places strong emphasis on taking time off when needed. In order to maximize productivity and effectiveness in the work place, appropriate time away from the job is necessary. This might mean something as simple as taking an extra thirty minutes at lunch time in order to run an errand or attend a personal appointment. This type of flexibility in scheduling can make the all the difference in one’s attitude about the workplace. That is not to say that taking extraordinary amount of time of is suggested or recommended. Rather, the goal is to obtain and maintain just the right balance between work life and home life…not an easy task…

Attorney Wadler and her family

Just as the scales of justice symbolize balance or the weighing of issues in order to achieve a just result, so too, maintaining balance between one’s work life and personal life allows for the best results in both worlds. The law firm of Wetherington Hamilton, P.A. allows for and encourages this type of balance, making this law firm not only a great place to work, but a successful law firm, achieving positive results for its clients!

Joan A Wadler, Esq.

Attorney Billing Methods – More Than Just the Hourly Rate

March 2, 2016/in Articles, General/by Ted Hamilton

So you have a lawsuit of some kind and it is not a personal injury claim. You can’t afford an attorney or you may be able to afford an attorney, but you really don’t want to spend the money to pursue your claim. If your claim involves an action for money of any kind, for example a breach of contract, foreclosure, for possession of some type of real estate, breach of fiduciary duty or other type of claim for money, an alternative fee arrangement may be the way to go.

The age of hourly billing for attorneys is rapidly changing. Our firm handles matters using all types of alternative fee arrangements. When you chose your attorney to handle a breach of contract claim, you need to consider using these types of attorney billing methods to limit your exposure to excessive attorney’s fees. The hourly billing method involves the attorney billing by the hour for all work performed on the case. You receive a monthly bill with the time entries charged to your file for the month. This method works well in cases not involving a claim for money, or in cases where you are defending a claim brought against you by someone else.

Alternatives to the hourly attorney billing method include a contingency fee, a suit fee plus contingency fee, a straight flat fee, a success fee plus reduced hourly, a reduced hourly rate plus contingency and a flat fee.

The most common type of alternative fee used by attorneys is the contingent fee. A contingent fee involves the attorney getting paid a percentage of the recovery. This type of billing may be used to handle all types of commercial collections claims. A suit fee may be included in this type of claim. A suit fee is a fee earned by the attorney upon filing suit. For example, if the attorney sees your case as more complicated than a normal collections case, the suit fee will help get the case started. This suit fee can range from a few hundred dollars to thousands of dollars depending on the amount involved and the complexity of the case. In addition, a contingency fee may also be used in combination with a reduced hourly rate. For example if the attorneys rate is normally $350 per hour. This rate might be lowered to $250 per hour with a contingency of say 15% or 20% upon collection.

A straight flat fee is often used for matters involving contract preparation and drafting. You need to have your attorney commit to the fee at the outset as much as possible to ensure you will not be charge more than you anticipate for a particular project.

A success fee, is an additional fee received by the attorney upon a successful outcome. Often, this fee is included along with a slightly reduced hourly rate or a lower contingency rate. In the end this fee may be substantial, but of course, it is only paid if you win.

Ultimately, it is up to you to ask your attorney about these billing alternatives. Feel free to call our firm any time to discuss billing alternatives to help you get your claim filed.

Theodore Hamilton, Esq.

Why Mediate in Florida State Court Proceedings?

February 19, 2016/in Articles, General/by Ted Hamilton

Mediation is a voluntary, confidential process whereby the parties to a lawsuit or dispute gather with their respective counsel, if any, and a mediator with the goal of resolving their issues. The process is voluntary, although it is often court-ordered. A mediator is not a judge or decision maker; rather, a mediator is a neutral third party who facilitates communication between the parties.

So let’s break this down a bit. How can a court-ordered meditation be voluntary? In state court, if mediation is court-ordered, the parties to the action are required to appear. The process is voluntary – that is the parties are not required to reach an agreement. Generally, in Florida state courts, there is no good faith requirement for mediation. (Local rules and Federal Court rules may have different requirements regarding mediating in good faith). The parties must have full settlement authority and must comply with all court orders and rules regarding the proceedings. The process itself is voluntary and whether or not the parties reach an agreement depends upon the facts and circumstances of each case.

Usually, communications held during mediations are confidential, except as provided by law. The parties should be able to freely discuss the case during mediation without concern for having their words used against them at a later time. The rationale is to encourage open dialog throughout the process. If the parties reach agreement at mediation, a signed, written agreement is not confidential, unless it states otherwise.

The mediator’s role is not that of decision maker. Unlike a judge or arbitrator, the mediator acts as an impartial third party to facilitate or guide the mediation process. So, what is the point of mediation if the mediator isn’t making a ruling on the case? Mediation allows the opportunity for all parties to communicate freely and to have input into any potential resolution. Typically, if a judge or jury decides the case, at least one party will not be pleased with the outcome. If successful, mediation can save the time and expense of trial, with the parties having input into the resolution of their case.

Joan W. Wadler, Esq.

HIPAA Enforcement – Small Physician Groups Are Not Immune

January 25, 2016/in Articles, General/by Ted Hamilton

Small medical practices who think they don’t need to worry about HIPAA privacy and security compliance had better think again.

In December 2013, Adult & Pediatric Dermatology, a 12-physician group in Massachusetts, agreed to pay $150,000 to US Health & Human Services for alleged violations of the HIPAA Privacy, Security, and Breach Notification Rules arising out of a lost, unencrypted flash drive containing patient information. In addition to the cash settlement, HHS required the group to implement a corrective action plan, including developing a risk analysis and risk management plan to address and mitigate any security risks and vulnerabilities.

Prior to the Massachusetts case, HHS reached a $100,000 settlement with a 5-physician group in Phoenix, Arizona. HHS accused Phoenix Cardiac Surgery, P.C. of a “multi-year, continuing failure … to comply with the requirements of the Privacy and Security Rules.” The practice was posting clinical and surgical appointments for its patients on an Internet-based calendar that was publicly accessible. In addition, the practice had failed to implement even the most basic requirements of the Privacy and Security Rules – such as appointing a security official or adopting basic policies and procedures to appropriately safeguard patient information.

A review of the HHS website on which OCR posts examples of its enforcement actions reveals that most of the examples involve large hospitals, national drugstore chains, and large health insurance companies. The list of private practices facing enforcement actions appears to be growing, however. Surprisingly, many of the enforcement actions cited on the website deal with a private practice’s misunderstanding of the patient’s right to access his or her own medical records. For example:

A practice refused to honor an individual’s request for a complete copy of her minor son’s medical record.
A practice improperly billed a patient a $100.00 “records review fee” in connection with the patient’s request for a copy of his medical record.
A practice denied an individual access to his records on the basis that a portion of the individual’s record was created by a physician not associated with the practice.
A physician requested that patients sign an agreement entitled “Consent and Mutual Agreement to Maintain Privacy.” The agreement prohibited the patient from directly or indirectly publishing or airing commentary about the physician, his expertise, and/or treatment in exchange for the physician’s compliance with the Privacy Rule.
A private practice physician denied a patient access to her medical records because the patient had an outstanding balance for services the physician had provided.

Each of these cases arose out of a complaint filed with the OCR by an individual patient. And each of these cases involves one of the most basic provisions of the HIPAA Privacy Rule.

The experiences of Adult & Pediatric Dermatology and Phoenix Cardiac Surgery should serve as clear warnings that HHS is not only investigating those complaints brought against large health insurers and drug store chains, but that complaints against small, private practices are going to be investigated and prosecuted as well. Physicians, dentists and other private providers would be well advised to make sure they have the necessary policies and procedures in place to comply with HIPAA and that staff members are being properly trained. If you have an “off the shelf” generic HIPAA manual, Wetherington Hamilton, P.A. has the resources to help you tailor the policies to your practice and to provide you with the necessary staff training. If you don’t have a HIPAA manual or you aren’t providing training to your staff you are risking big fines.

Matthew J. Lapointe, Esq.

Do You Really Want to Hire an Aggressive Lawyer?

October 16, 2015/in Articles, General, Litigation/by Ted Hamilton

If you live in Tampa, you no doubt have seen the billboards for the personal injury law firm touting themselves as the “Aggressive Law Firm”. I have wondered what this means for a lawyer to be aggressive. Does it mean that the lawyer throws coffee on opposing counsel? (See this article) Or worse, does the lawyer break laws or rule to get the win.

When you are shopping for a lawyer, what should you look for? Aggressive sounds good but what does it mean. Our firm is focused on solving your disputes, helping you in a time of need, and keeping you out of trouble so you can run your business or go about your life. I have seen “Aggressive” lawyers in court represent themselves above their client’s best interests. Our focus is on ensuring that your interests come first. If this means presenting your case to a judge or jury, we will focus on the facts and present them passionately and logically on your behalf. At the same time, however, we are respectful to the judge and to opposing counsel. An aggressive attorney creates a controversy between the lawyers that doesn’t need to exist. Creating unnecessary conflict hampers your goal of resolving your conflict.

Finally, our lawyers strive to keep you out of trouble. This occurs through advice and counsel at the contract stage or prior to filing a lawsuit. Our attorney’s want you to understand the costs of litigation before you get into the case. In addition, we work with our clients to handle collections suits and other types of suits on a percentage of the amount recovered or with other alternative fee arrangements if at all possible.

So when you chose a lawyer, ask the legal community what they think of the attorney. If they give you a resounding yes, then that is the firm and attorney to hire.

Theodore J. Hamilton, Esq.

How to Choose a Lawyer in Florida

February 28, 2015/in Articles, General/by Ted Hamilton

With the excess of information at everyone’s finger tips, sometimes making any decision seems more complicated these days. Choosing the right lawyer in Florida for your needs is no exception. We are no longer flipping through the yellow pages or relying on radio ads to determine who to turn to if we have a legal problem. Instead, we turn to internet searches and the volumes of information that comes up on our screens. But how do you know if the first lawyer on the list is the best, or merely the one that paid the most to have their website pop-up first? What information should you be looking for when determining which lawyer will meet and may be even exceed your needs?

The first place to turn to is the Florida Bar. You always want to determine that the person you are talking to and hiring is an attorney. You can do this by going to The Florida Bar website at www.floridabar.org. Use the “Find a Lawyer” search engine and find the lawyer’s information, address, phone number and email to confirm their credentials.

Call the lawyers office and talk to their staff. Make sure they are friendly and accommodating. Set up an initial appointment with the lawyer (either via phone or in person) to make sure that you have communicated with the actual lawyer that will be handling your case and providing you services. If any lawyer is too busy to meet with you at the beginning stages of the business relationship, they may be too busy to meet all your needs as your relationship and case grows.

Also, consider the lawyer’s reputation. Do you know people who have worked with the firm before? Have you heard people praise an attorney’s work? Ask around. Someone you know may be working with an attorney that might be able to meet your needs as well.

You can also check the attorney’s discipline history. If an attorney has been professionally disciplined by the Florida Bar you can find that information on The Florida Bar’s website, as referenced above. Once you find the attorney’s page using the “Find a Lawyer” search engine, scroll down until you see the words “10 year discipline history.” If there is no discipline, the word “none” will appear to the right of the name. if there is a history, the word “yes” will appear, with a link to take you to the documents with additional information.

Remember, choosing the right attorney should make your life easier, whether professionally or personally. Finding a firm with a good reputation for both their legal knowledge, results, and customer service is a formula for success.

Kalei McElroy Blair, Esquire

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Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.