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Showing posts from May, 2012

Joint Residency Rule and Venue

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Willie Brown v. Kim Nagelhout, 37 Fla. L. Weekly S225a, Case No. SC10-868, filed March 15, 2012. This was a personal injury suit in which the Florida Supreme Court reversed 4th DCA’s application of the judicially-created “joint residency rule,” which allows venue in any county of residence for more than one defendant resides in those cases where all defendants do not reside in a common county, and receded from Enfinger v. Baxley, 96 So. 2d 538 (Fla. 1957), in favor of section 47.021, Florida Statutes, which allows the plaintiff to chose venue in such cases. (from RPPTL Subcommittee).
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com

Lien Transfer Bond and Statute of Limitations

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The Cool Guys, LLC v. Jomar Properties and Accredited Surety, 37 Fla. L. Weekly D574a, Case No. 4D10-4206, filed March 7, 2012. Affirmed the trial court’s summary judgment in favor of owner and surety on a transfer bond that was posted during the pendency of the lien foreclosure, and held that s. 713.24(4), as amended in 2005, precluded the subcontractor from bringing a claim on the transfer bond more than two (2) years after the lien was transferred to bond by requiring that such a claim must be filed within one (1) year after the transfer bond was posted. Note: This opinion is contrary to American Fire v. Davis Water, 358 So. 2d 225 (Fla. 4th DCA 1978), aff’d, 377 So. 2d 164 (Fla. 1979), but that case was decided prior to the statutory amendment. (from RPPTL subcommittee).
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com

Lien Claim and Attorney's Fee Award

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Ricardo O. Wolfe, II and H. Michelle Wolfe v. Culpepper Constructors, Inc., 37 Fla. L. Weekly D505a, Case No. 2D10-3670, filed February 29, 2012. Contractor sought foreclosure of construction lien for $91,261.65, which was reduced to an award of only $9,074.06 after offsets for owners’ counterclaim for defective workmanship, after contractor had rejected a joint settlement offer of $25,000 made by owners pursuant to section 768.79, Florida Statutes (2006), and Fla. R. Civ. P. 1.442(c)(3). After citing concerns and observations by other courts that this statute and rule have not seemed to have their desired affect of reducing litigation, the court held that the trial court’s denial of fees to the owners was error, and reversed and remanded on this issue. (from RPPTL Subcommittee).
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com

Chinese Drywall and Duty to Defend

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Great American JWR Construction Services and Gulf Reflections Condominium Association, Case No. 10-61423-CV-Huck/Branstra, U. S. District Court, Southern District of Florida, Order entered on April 9, 2011. Summary Judgment granted in favor of contractor and owner and against surety on the sole issue of the duty to defend an underlying suit in Lee County Circuit Court (Case No. 10-CA-000371) for damages caused by the installation of Chinese drywall. Applying New York law as required by the policy, the exclusion for “Faulty work/own work” was rejected because the drywall installation itself was not alleged to be defective, and the exclusion for “Products Liability” was also rejected because the construction was a “service” and not a “product,” and because the contractor did not “handle” the drywall. Surety was also ordered to reimburse for defense costs incurred to date, but further proceedings in this case was stayed pending outcome of the underlying suit. (from RPPTL Subcommittee).
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Employee vs. Independent Contractor

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Michael Scantland v. Jeffry Knight, Inc., Case No. 8:09-CV-1985-T-17TBM, U. S. District Court, Southern District of Florida, Tampa Division, Order entered on March 29, 2012. Partial Summary Judgment was entered in favor of defendant cable installation company for customers of Bright House Networks in a collective action under Fair Labor Standards Act brought by individual cable technicians claiming to be “employees,” rather than “independent contractors,” based on court’s analysis of installer contracts and an “economic realities” test of the parties’ relationship, including various factors dealing with the nature and degree of “control” over which the work was performed, the opportunity for profit and loss, investment in materials and the presence of special skills. (from RPPTL subcommittee).


Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com

Lien Releases

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Many lien release forms contain language that not only releases any lien claim a contractor or supplier may have but any claim against the owner or upstream customer.  Make sure to read lien releases carefully before signing.

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com

Fraud in the Inducement

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A claim that someone was fraudulently induced into signing a contract must be plead with specificity.  FDIC v. Fireman's Fund Ins. Co., 271 F. Supp. 689 (S.D. Fla. 1967).



Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com

NTO Companies and Claims of Lien

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713.08, Fla. Stat. provides that:  (2) The claim of lien may be prepared by the lienor or the lienor’s employee or attorney and shall be signed and sworn to or affirmed by the lienor or the lienor’s agent acquainted with the facts stated therein.
A Notice to Owner company cannot prepare the claim of lien unless they have an attorney prepare it.  To do so, would be the unlicensed practice of law.


Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com


Court-ordered Mediation

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A Florida State Court can order the parties to mediation to try and resolve a dispute pursuant to Section 44.102, Florida Statutes.

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278
www.trentcotney.com