Monday, February 25, 2013

Fraud and Bad Check

Rocka Fuerta Construction, Inc. v. Southwick, Inc., 38 Fla. L. Weekly D79a, Case No. 5D11-2994, opinion filed December 28, 2012. Owner and contractor settled a claim of $42,835 with an agreement for owner to pay only $8,000, owner breached by issuing a dishonored check. Contractor's suit for full amount of claim was dismissed with dismissal by the trial court as a sanction based on contractor's alleged fraud for failing to first seek recession of the settlement agreement and filing suit without referring to the settlement agreement. The appellate court held that there was a lack of the type of egregious misconduct or extreme circumstances too support dismissal with prejudice, reversed the dismissal for lack of any fraud, and pointed out that the defendant's position could have been raised instead as an affirmative defense. (from RPPTL Subcommittee).


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

Monday, February 18, 2013

Condo Association Lien and Lis Pendens

U. S. Bank Nat. Assn v. Quadomain Condominium Association, Inc., 38 Fla. L. Weekly D20b, Case No. 4D12-422, opinion filed December 19, 2012.  Filing of notice of lis pendens in mortgage foreclosure prevented court from having jurisdiction to foreclose condominium association's lien for unpaid assessments in a separate action since the only way to enforce a property interest that is unrecorded at the time the lis pendens is recorded is by timely intervening in the suit creating the lis pendens, and all other action are barred. Accordingly, denial of lender's motion to vacate final judgment for association was reversed. (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

Wednesday, February 13, 2013

Interest and Pay when Paid


Current Builders of Florida, Inc. v. Travelers Casualty and Surety Company of America, et. al,, 38 Fla. L. Weekly D31a, Case No. 3D11-2570, opinion filed December 19, 2012. Trial court's assessment of prejudgment interest in favor of owner/developer from completion of subcontractor's work was reversed and remanded for a recalculation based on date owner paid contractor due to subcontract provision that contractor would "pay when paid" (and contractor was paid by transfer of real estate by owner/developer). (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

Monday, February 11, 2013

Entitlement to Attorney's Fees


Caridad Vasques v. First Horizon Homes Loans, 37 Fla. L. Weekly D2773a, Case No. 3D11-2972, opinion filed December 5, 2012. Affirmed order denying motion for fees due to lack of pleading entitlement based on contractual provisions. (from RPPTL Subcommittee).


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

Tuesday, February 5, 2013

Water Intrusion and Insurers


Landmark American Insurance Company v. Santa Rosa Beach Development Corp. I, et al,, 37 Fla. L. Weekly D2759a, Case No. 1D11-4882, opinion issued November 30, 2012. Condominium association's claim against developer and contractor for water intrusion damages caused by defective cladding based on warranty provisions of s. 718.203 was resolved by an agreement to make warranty repairs in exchange for full release of liability. When water intrusion problems continued after two hurricanes, association filed claim against developer's insurer, which was denied due to policy exclusion for faulty, inadequate or defective design, workmanship, construction or repair. When association filed suit, insurer filed a third party complaint again developer and contractor, and raised a defense that the warranty repair agreement release also release the insurer. Summary judgment against the insurer was affirmed. (from RPPTL Subcommittee).


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

Saturday, February 2, 2013

Serving an Out-of-State Contractor in Florida

Florida Statutes, Section 48.193,

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
 
Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602