Florida Construction Law

Bertha Sanchez and International Restaurant Corporation v. Soleil Builders, Inc., 37 Fla. L. Weekly D2345b, Case No. 5D12-2349, filed October 5, 2012. Partial summary judgment entered to foreclose contractor's lien was REVERSED and REMANDED to allow the trial court to consider the owner's affirmative defenses and counterclaims since the contractor had failed to disprove them or establish that they were insufficient. (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

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

The failure to timely serve a Notice to Owner when required is a complete defense to a lien claim.  Gulfside Properties Corp. v. Chapman Corp ., 737 So.2d 604 (Fla. 1st DCA 1999). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

A contractor is entitled to a final judgment of foreclosure on it lien claim even if the arbitration award was silent as to the contractor’s right to foreclose the lien.  Because the arbitrator found that the lien was proper and perfected, the contractor could obtain a final judgment of foreclosure.  Royal Palm Collection, Inc. v. Lewis , 36 So.3d 168 (Fla. 4th DCA 2010). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

KA Properties, LLC v. USA Construction, Inc ., 35 So.3d 1015 (Fla. 5 th DCA 2010) holds that failure to file a lien foreclosure counterclaim in response to an order to show cause proceeding within the twenty-day time period will result in the discharge of the lien. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Section 713.21(4), Fla. Stat. requires that you counterclaim for foreclosure of your claim of lien on or before 20 days after receipt of a summons on an order to show cause proceeding.  Failure to file the counterclaim in that time frame results in the loss of your lien rights.  Unnerstall v. Designerick, Inc., 2009 WL 2971869 (Fla. 2d DCA 2009).   Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com