An Inconsistent Position on Appeal

By Anonymous -
Sarasota Renaissance II v. Batson-Cook Company, Copper Carry and Associates, et. al, 38 Fla. L. Weekly D1279a, Case No. 2D11-5449, filed June 12, 2013: Contractor sued developer for breach of an oral "reconstruction" agreement for the costs to repair water intrusion damages to a condominium, as well as the performance bond surety, and the developer assigned to contractor its claims against the architect for faulty design on the expressed agreement that the assignment would not serve to release any of such claims. Contractor filed motion to amend its pleadings to assert the claims assigned to it pursuant to Florida Rule of Civil Procedure 1.260(c), which the trial court denied based on the argument that such amendment would be prejudicial to the architect, and granted the architect's motion to drop the developer from the suit by ruling that the damages claims of the developer had been released by the assignment. On appeal by the developer, the court held that the assignment did not operate to extinguish or release the developer's claims, but AFFIRMED the order to "drop" the developer as a party based on the developer's failure to object to that order and actually urging in favor of that order, thereby taking an inconsistent position on appeal while failing to preserve this issue for appeal.

(From RPPTL Subcommittee)


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

Comments

Post a Comment

Popular posts from this blog

The Dotted Line: When Contractors Can Walk Off the Job

By -
When general contractors or subcontractors sign on to construction projects, they usually start off believing everything will run smoothly. But, during the course of the work, issues sometimes arise that force all parties to go running back to their contracts in order to evaluate their options. One of those options for construction companies is to simply stop work, but contractors need to take care when making such a big decision. “Stopping work and ultimately terminating the contract is one of the most radical things you can do,” said Joseph McManus Jr., attorney and shareholder at law firm Carlton Fields.   Luckily, most of the circumstances under which contractors are clearly entitled to stop work are included in the most popular standard forms of contracts. Nonpayment The most common reason that contractors find it necessary to stop work, McManus said, is that they haven’t been paid for approved invoices. In that scenario, he said, contractors have the ...
Read more

"Mass-timber" Sees Greater Use in Roofing and Construction Projects in Europe

By -
Image
The use of "mass-timber," or prefabricated engineered wood components is becoming more common in construction and roofing applications in Europe. In projects such as the galleria roof of a central city building in Surrey, it helps meet demand for wood structures to add visual appeal. From NRCA Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 407 N. Howard Avenue Suite 100 Tampa, FL 33606 www.trentcotney.com
Read more