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Showing posts from July, 2012

Condominium and Surety Claim

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In Bruno v. Mona Lisa at Celebration, LLC (In re Mona Lisa at Celebration, LLC), Case No. 6:09-bk-458, Adv.Proc. No. 6:09-ap-49 (Bankr.M.D.Fla. May 16, 2012) numerous prospective purchasers of units in a hotel-condominium made deposits but, after the Florida condominium market collapsed, did not go through with their purchases and demanded return of their deposits even though the project was constructed as promised (“The likely reason the plaintiffs rely on these conclusory statements is that they cannot demonstrate any actual damages because, by and large, Mona Lisa did everything it promised.”). Pursuant to section 718.202, Florida Statutes, Mona Lisa posted a bond to allow it to use the first 10% of the prospective purchasers’ deposits. Many of the plaintiffs had deposited more than 10%, and the Act permitted the developer to use such excess deposits for construction and development, but not for advertising. The court found several technical violations, including that the over 10% …

Common Law Indemnity and Architect Negligence

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In Safeco Ins. Co. of Am. v. Victoria Mgmt., LLC, 2012 WL 1606101 (S.D. Fla. May 7, 2012), the surety issued performance and payment bonds for the construction of a nursing home. The surety required the contractor and others to execute a general agreement of indemnity in its favor as a condition of issuing the bonds. The owner of the nursing home terminated the contractor and called upon the surety to complete the project in accordance with the terms of the bonded contract. The surety sued the owner for amounts due under the contract for approved change orders totaling $3,201,326.63. The surety also sued the architect for common law indemnity and professional negligence.
The architect moved to dismiss the surety’s common law indemnity claim arguing that there was no special relationship between the architect and the surety or the contractor. Citing to Amwest Surety v. Ernst & Young, 677 So. 2d 409 (Fla. 5th DCA 1996), the court disagreed and held, “the surety can maintain a claim a…

Performance Bond and Breach Claim

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In Candlelight Mini Storage, Inc. v. Chubb Group Insurance Companies, Case No. 8:12-cv-393 (M.D. Fla. June 13, 2012) a purchaser of property was the obligee of a bond provided by the developer of the property to secure construction of certain improvements. The purchaser alleged that the improvements were not built and sued the surety. In addition to breach of contract, the complaint sought to “foreclose” on the bond. The court granted the surety’s motion to dismiss the foreclosure count and instructed the plaintiff, if it chose to re-plead, to explain what it was seeking in addition to a breach of contract claim. (from RPPTL Subcommittee).
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Arbitration and Miller Act Claim

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In U.S. for the use of Postel Erection Group, L.L.C. v. Travelers Casualty and Surety Company of America, Case No. 6:12-cv-182 (M.D. Fla. June 28, 2012) a second-tier subcontractor sued the sureties on the prime contractor’s Miller Act payment bond. The first tier subcontractor was engaged in arbitration with the prime contractor, and the sureties moved to stay the Miller Act suit pending the outcome of the arbitration. The court granted the sureties’ motion based on its inherent power to control its docket and the interests of judicial economy. The court noted that there was a “murky” but close relationship between the first tier subcontractor and the claimant but did not depend on that relationship in granting the motion.  (from RPPTL Surety and Insurance Subcommittee).
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Arbitration Award and Construction Lien

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Zak Rhodes v. Newport Building and Construction, Inc., 37 Fla. L. Weekly D4091b, Case No. 2D10-3006, filed May 4, 2012: Order foreclosing construction lien on incomplete residence was reversed, because the property owner had already paid contractor the amount of an arbitration award for damages cause by breach of contract. In addition, the trial court’s determination that the contractor was entitled to attorney fees was dismissed as a non-final non-appealable final order.  Editor’s Note: This case did not discuss that the lien included the balance due on the contract for the incomplete work, but the arbitration award included a major set off in favor of the owner. (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278
www.trentcotney.com

We Have Moved!

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As of July 1, 2012, Trent Cotney, P.A. is now located at 1211 N. Franklin St, Tampa, FL 33602 (two doors down from our previous location).  After the initial six months, it became apparent that we needed additional space and have expanded into a 2000 sq ft facility.  

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 (813) 579-3278 www.trentcotney.com