Tag Archives: document

Even a text can make a contract! (law note)

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text message bubblesI’ve written many times about how you should–indeed, must–document your construction project in case there are problems or disputes later on.  Of course, you need to update the plans and specs.  But equally important, you need to document agreements to do things outside of the contract documents and also all verbal directives from the owner.

Tennessee lawyer Matt Devries recently wrote a nice blog post entitled:  LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract, discussing  how even text messages can be legally binding.  Something to remember, and learn from.  I always tell clients I’d like to see any deviations signed by all parties, but failing that, a fax or email will do.  Just don’t rely on a conversation alone.  Texts are *not* the preferred method of documenting something for the court, but they are better than nothing.

Read Matt’s post and drop him a line.  And comment below if you’ve ever considered using text messages to establish a written record of agreements.

Photo courtesy Pixabay.

Of backwoods towns, train-wrecks, and feuding neighbors (i.e., an Email warning) (law note)

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Train WreckWhat is it about train-wrecks that we all slow down to rubber-neck the blood, guts, and gore?  Whatever the reason, we all love to watch a good fight– especially those on-line, where people treat one another less than human.

A recent neighborhood list serve that I am a part of just had a particularly vicious debate between two people who, had they met over a cup of coffee instead of on-line, would at least have been civil to each other.  Instead, they sent verbal barbs back and forth to one another over (of all things) a door-to-door solicitor.  With the whole neighborhood watching.  What does this have to do with your professional career as an engineer or architect?  Glad you asked.  First, just a taste of the exchange:

Aggrieved Neighbor #1: 

I’m sorry for your view of the world and clear lack of broad social intelligence.  You add to the problem and underline the unnecessary drama applied to most modern dialect.  Please go get a few more degrees to convince yourself of your own intelligence.

Aggrieved Neighbor #2:

Nice ad hominem.  I never suggested that you or anyone else on this thread was lacking intelligence or motivated by ill will. Based on your last response, I still wouldn’t say that you’re lacking intelligence, but you are kind of a @#$%. Have a lovely day.

 

That was fun, wasn’t it?  Now, back to how this relates to your work.  These neighbors KNEW that others would see their remarks- hence the nature of a list-serve.  Now, how often do you send an email internally, not intending anyone other than your colleagues to see it?  Often, right?  Do you ever say anything inappropriate in the emails?  Off-color joke?  Tongue-in-cheek comment about the client?

Let’s say you’ve just had it with a particularly offensive client, and send your colleague this email:

Guess who changed his mind again?  That’s right, Mr. Wishy-Washy himself.  Need to revise the latest plans for the lobby area to include an extra work station.  Thanks!

Nothing too bad about that, right?  Would you like to have to explain why you are calling the client names in a deposition?  Cause every one of those emails is discoverable.

Here’s another one (modified from a real life example), sent to a former classmate in Faraway State:

Hey, Joe!  I hear that Mr. X is moving from Faraway to Random Town, North Carolina to run the Operations Facility There.  What happened to get Mr. X sent to a backwater town like Random Town, NC– hand caught in the cookie jar?  Drop me a line when you get a chance.

 

This email (modified ONLY slightly to prevent embarrassment by the persons involved) was actually part of discovery in a case I handled.  Now, imagine explaining to a local jury why you called them a “backwater town”.  The thing is, my client did not mean anything at all by the email– he was just ribbing his former classmate.  You know, the type of thing you do over a glass of beer.  Except here, it was documented.  For the other side.  For the court.  For the jury.

Keep these examples in mind when you are writing anything.  It’s the old New York Times rule— if it isn’t something you’d be happy to have your Grandma read about you in the NY Times, then don’t put it in writing.

Your future self will thank you.

Your turn.  Ever write or get an email that made you wince?  Think twice before sending those missives.  Jokes do not translate well in a construction lawsuit!

 

Learn from SONY: Don’t use trash talk in your construction project emails!

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Bears hibernating

A hibernating bear and her cubs

Lessons in construction administration come from everywhere — including the SONY scandal.

In case you are a bear hibernating in a cave (in which case, go back to sleep!), you’ve heard about the SONY hacking that was apparently, but not definitively, done by North Korea due to their displeasure over the movie The Interview.  And, you may have found it amusing to read of the inner bickering at SONY, at lease until the threat of a national incident and the (at least temporary) yanking of the movie from its planned Christmas release.

Lost in all of the discussion about taste, censorship, security, and First Amendment rights, however, was a simple lesson for each of us.  Never put anything in writing that you wouldn’t want to see on the TMZ report, the Wall Street Journal, or the New York Times.  For example, don’t call one of the biggest stars in your studio (Angelina Jolie) a “minimally talented spoiled brat.”

I’ve written about this before, but this is a fine time to remind you that someday, someone will read your emails.  And that someone will not be privy to your internal jokes, quirky sense of humor, or understand that you just had a bad day.  If you have to have those awkward conversations– have them in person, or at least on the phone.  Don’t play around with written communications.  Every email, text, tweet, Facebook post, letter, note, or diary entry can be discoverable in a lawsuit.

We’ve all done it.  Sent inappropriate emails.  Vents.  Laments.  Stop.  Endeavor to be boring rather than funny in all of your online accounts.  You may be only laughing on the inside, but you’ll still have a job, respect, and knowledge that there are no hidden documents waiting to shame you at the stroke of a hacker’s keyboard.  And, tell your employees to do the same.

Do you have an example of getting an inadvertent email or text?  Something that could have been embarrassing if it leaked beyond your firm?  Share in the comments below.

Photo courtesy Wikimedia.

 

 

 

 

 

 

A trap for the unwary: Construction contracts under Seal (Law note)

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signing contractHave you ever signed a contract that was “under seal”?  You probably have, and you probably have done so without really understanding what it means.  In North Carolina, a contract “under seal” means that the contract can be enforced for ten (10) years instead of the usual three.  In other jurisdictions, the contract can be enforced for even longer periods of time.  [For example, in Delaware, a contract under seal extends the time for brining a claim to twenty (20) years!]  Since a sealed contract extends your liability significantly, it is not something you should do lightly.

The phrase “under seal” comes from the old tradition of using a unique wax symbol (such as an engraved signet ring) to identify the owner signing the contract.  Today, however, you sign under seal when the words “under seal” or even just “[Seal]” is printed next to your signature, like this:

______________  [SEAL]
Melissa Dewey Brumback

While it is good to know about seals in general, construction professionals should be more concerned than ever about sealed contracts following a recent North Carolina Court of Appeals decision, Davis v. Woodlake Partners.  The Court in Davis held that in a contract to purchase improved property, signed “under seal,” extended the statute of limitations to the ten year statute as authorized by N.C. Gen. Stat. 1-47(2).  This is despite the fact that there is a six year statute of repose in North Carolina.  In the case, the lawsuit was brought within the 6 years, but outside of the 3 year statute of limitations for ordinary contracts.  The Court found the action was timely because of the “sealed” nature of the contract.

What does this mean for construction contracts?  You could find yourself liable on a construction contract longer than you intended.  Does this case apply in a situation where the 6 year statute of repose was violated?  The Court was not faced with that issue, so it’s too soon to tell.  The case was a divided opinion, so the state Supreme Court may be weighing in on the issue.  Stay tuned.

In the meantime, consider striking through any “seals” on your construction contracts.

Your turn.  Take a look at the last contract you were asked to sign.  Was it “under seal”?  Did you know what that meant when you signed it?  Share below.

Photo (c) Losinpun.

Preparing for the Tax Man: Tips for Architects, Engineers, and other small business owners (guest post)

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Miss me yet?  No, I’m “not dead yet” (for you Monty Python fans).  Nor have I fled to Hong Kong (a la Edward Snowden).  And no, contrary to rumors, I am not working on a Middle Eastern documentary with Jon Stewart.  Ahem.  My MIA status was simply due to too much work.  Good problem to have, right? 

Regular posting will resume next week.  In the meantime, since it is, once again, tax time for quarterly filers, I thought this guest post on tax issues particularly appropriate.  Even if you don’t file quarterlies, pay attention now to save heart ache at the end of the year!

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If you own your own architectural or engineering firm, tax time provides a unique advantage for you. Small businesses have ample opportunities to take advantage of deductions and tax-saving steps that maximize refunds and business profit.
money

Looking for a few small-business tax tips? Consider this shortlist to help streamline your process:

1. Proper record-keeping: Year-round record keeping ensures that come tax time, your paperwork will be in order. Make sure that you save all documents relating to deductions in case your business is audited. Because tax credits and deductions change from year-to-year, keeping excellent records allows you to adapt while being able to reference previous years simply by checking your filing.

2. Keep two Acts in mind: Both the Small Business Jobs Act and the Patient Protection and Affordable Care Act (aka “Obamacare”) help you manage your tax burden. The first has over 17 tax provisions that decrease taxes for small businesses, all of which can win your business great savings. The Affordable Care Act allows small businesses to cover 35 percent of the health care premiums that they pay to provide health insurance to employees. In 2014, the amount will increase to 50 percent.

3. Avoid an audit: Audit traps are indicators to the IRS that they need to investigate your business dealings further. Avoid this scenario by keeping the following details straight:

  • Home Office Deduction rules: Know what qualifies a home office and make sure yours abides by the IRS definition before claiming one. Not all home-based businesses qualify for this deduction.

  • Properly classify your employees: Independent contractors and employees are not one and the same from an IRS perspective and should not be treated as such. Non-compliance with proper classification is a red flag to the IRS that your business may be attempting to avoid payroll taxes and can result in back taxes and penalties.

  • Miscellaneous deductions: Be cautious with your deductions, as a large amount of itemized deductions can raise suspicion. Be sure that you have all of your paperwork to support any deductions and claim them in a clear and specific manner.

  • Business and personal expenses do not mix: While Turbotax encourages freelancers to combine business with pleasure and write off the expenses, the IRS does not welcome this blended method and will scrutinize individuals who combine their business and personal expenses too often. Maintain separate bank accounts for your personal life and business and maintain meticulous records to ensure that your actions do not require further attention.

Whether you have an accountant or do your business taxes yourself, knowing the proper way to file is an excellent policy for a small and growing business. By maintaining clean records and staying aware of IRS policies, you can make the most of business deductions and enjoy a penalty-free tax season.

Chelsea Terris provides online content for Meticulous Plumbing, a family owned company located in Portland, OR. Chelsea is passionate about helping small businesses thrive. 

Thanks Chelsea for the tax tips!