Empathy List Archives

RJ

Reese J. Henderson, Jr.

Mon, Jul 11, 2011 3:24 PM

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during
the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions
of the lien law to eliminate contradictory references, clarify the
statute of limitations on actions on payment bonds, tweak the statutory
claim of lien form; tweak the statutory notice of commencement form and
clean up the section dealing with electronic proof of delivery. I will
be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.
Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com
www.tritthenderson.com

CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients . If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited . If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise . Unauthorized interception of this e-mail is a violation of federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.

Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com www.tritthenderson.com CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients . If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited . If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise . Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.

BA

Barry Ansbacher

Mon, Jul 11, 2011 3:40 PM

Hi Reese,

Do you have the new call in number.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during
the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions
of the lien law to eliminate contradictory references, clarify the
statute of limitations on actions on payment bonds, tweak the statutory
claim of lien form; tweak the statutory notice of commencement form and
clean up the section dealing with electronic proof of delivery. I will
be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

CONFIDENTIALITY NOTICE: The information and all attachments contained in
this electronic communication are legally privileged and confidential
information, subject to the attorney-client privilege and intended only
for the use of intended recipients. If the reader of this message is not
an intended recipient, you are hereby notified that any review, use,
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please
notify us immediately of the error by return email and please
permanently remove any copies of this message from your system and do
not retain any copies, whether in electronic or physical form or
otherwise. Unauthorized interception of this e-mail is a violation of
federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of:
(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.

Barry B. Ansbacher
Board Certified Real Estate Attorney
Board Certified Construction Law Specialist
Ansbacher & Associates, P.A.
8818 Goodbys Executive Drive, Ste. 100
Jacksonville, Florida 32217-4605
http://www.ansbacher.net/
Barry.Ansbacher@ansbacher.net
904.737.4600 ext 302
Fax: 904.737.4700

This message (and any associated files) is intended only for the use of the intended recipient and may contain information that is confidential, and subject to privilege. If you are not the intended recipient note that any dissemination, copying or distribution of this message, or associated files is prohibited. Absent language to the contrary in the body of the message or attachment, this communication will not satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. If this communication relates to a debt, please note that this is a communication from a debt collector attempting to collect a debt and that any information obtained will be used for that purpose.

Hi Reese, Do you have the new call in number. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. Barry B. Ansbacher Board Certified Real Estate Attorney Board Certified Construction Law Specialist Ansbacher & Associates, P.A. 8818 Goodbys Executive Drive, Ste. 100 Jacksonville, Florida 32217-4605 http://www.ansbacher.net/ Barry.Ansbacher@ansbacher.net 904.737.4600 ext 302 Fax: 904.737.4700 -------------------------------------------------------------------------- This message (and any associated files) is intended only for the use of the intended recipient and may contain information that is confidential, and subject to privilege. If you are not the intended recipient note that any dissemination, copying or distribution of this message, or associated files is prohibited. Absent language to the contrary in the body of the message or attachment, this communication will not satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. If this communication relates to a debt, please note that this is a communication from a debt collector attempting to collect a debt and that any information obtained will be used for that purpose.

HC

Howard Cohen

Mon, Jul 11, 2011 3:41 PM

See the agenda

In the event that a Microsoft Word document is attached to this email, it was prepared or revised using Microsoft Word 2010. In the event that you have difficulty using this document in a prior version of Word, please download and install Microsoft's compatibility patch, which can be found at http://tinyurl.com/y5a879

Howard Allen Cohen
Board Certified Real Estate Lawyer
hac@atkinson-diner.com mailto:hac@atkinson-diner.com
Atkinson, Diner, Stone, Mankuta & Ploucha, P.A.
One Financial Plaza, Suite 1400
100 SE Third Avenue
Fort Lauderdale, FL 33394
Phone 954-925-5501 ext. 1318
Direct Fax 954-337-3234
www.atkinson-diner.com http://www.atkinson-diner.com/

To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, U.S. federal tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for purposes of (a) avoiding tax-related penalties imposed under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any transaction or matter addressed herein.

The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail or by telephone collect at 954-925-5501 and delete the original message. Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Barry Ansbacher
Sent: Monday, July 11, 2011 11:40 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

Hi Reese,

Do you have the new call in number.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today’s call, please find attached the legislative committee’s proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions.

Thanks,
Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

[cid:image001.jpg@01CC3FBF.6A5EE890]

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

[cid:image002.jpg@01CC3FBF.6A5EE890]

CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.

Barry B. Ansbacher
Board Certified Real Estate Attorney
Board Certified Construction Law Specialist
Ansbacher & Associates, P.A.
8818 Goodbys Executive Drive, Ste. 100
Jacksonville, Florida 32217-4605
www.ansbacher.net http://www.ansbacher.net/
Barry.Ansbacher@ansbacher.net mailto:Barry.Ansbacher@ansbacher.net
904.737.4600 ext 302
Fax: 904.737.4700
[cid:image003.png@01CC3FBF.6A5EE890]

This message (and any associated files) is intended only for the use of the intended recipient and may contain information that is confidential, and subject to privilege. If you are not the intended recipient note that any dissemination, copying or distribution of this message, or associated files is prohibited. Absent language to the contrary in the body of the message or attachment, this communication will not satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. If this communication relates to a debt, please note that this is a communication from a debt collector attempting to collect a debt and that any information obtained will be used for that purpose.

See the agenda In the event that a Microsoft Word document is attached to this email, it was prepared or revised using Microsoft Word 2010. In the event that you have difficulty using this document in a prior version of Word, please download and install Microsoft's compatibility patch, which can be found at http://tinyurl.com/y5a879 Howard Allen Cohen Board Certified Real Estate Lawyer hac@atkinson-diner.com<mailto:hac@atkinson-diner.com> Atkinson, Diner, Stone, Mankuta & Ploucha, P.A. One Financial Plaza, Suite 1400 100 SE Third Avenue Fort Lauderdale, FL 33394 Phone 954-925-5501 ext. 1318 Direct Fax 954-337-3234 www.atkinson-diner.com<http://www.atkinson-diner.com/> To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, U.S. federal tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for purposes of (a) avoiding tax-related penalties imposed under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any transaction or matter addressed herein. The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail or by telephone collect at 954-925-5501 and delete the original message. Thank you. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Barry Ansbacher Sent: Monday, July 11, 2011 11:40 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal Hi Reese, Do you have the new call in number. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today’s call, please find attached the legislative committee’s proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney [cid:image001.jpg@01CC3FBF.6A5EE890] 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com<http://www.tritthenderson.com/> [cid:image002.jpg@01CC3FBF.6A5EE890] CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. Barry B. Ansbacher Board Certified Real Estate Attorney Board Certified Construction Law Specialist Ansbacher & Associates, P.A. 8818 Goodbys Executive Drive, Ste. 100 Jacksonville, Florida 32217-4605 www.ansbacher.net<http://www.ansbacher.net/> Barry.Ansbacher@ansbacher.net<mailto:Barry.Ansbacher@ansbacher.net> 904.737.4600 ext 302 Fax: 904.737.4700 [cid:image003.png@01CC3FBF.6A5EE890] ________________________________ This message (and any associated files) is intended only for the use of the intended recipient and may contain information that is confidential, and subject to privilege. If you are not the intended recipient note that any dissemination, copying or distribution of this message, or associated files is prohibited. Absent language to the contrary in the body of the message or attachment, this communication will not satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. If this communication relates to a debt, please note that this is a communication from a debt collector attempting to collect a debt and that any information obtained will be used for that purpose.

GM

Gibbons, Michael

Mon, Jul 11, 2011 5:00 PM

I could not make the call today but write to express my views on the

proposed legislative changes. The proposed changes to Ch. 85 (dealing
with Owner's exposure to personal judgments on claims brought by
non-privity claimants) and Ch. 95 (dropping the one year SOL for all
bonds) are problematic for following reasons:

1.  Fla. Stat. s. 85.021---    This unintelligible legislation

admittedly cries out to be rewritten. Issue is making the Owner liable
personally to non-privity lienors foreclosing their construction liens.
I realize that there is a 1917 case and a 1969 case that arguably
supports holding an Owner personally liable for claims of non-privity
lienors. As construction law is practiced today, however, at least in
my universe, the Owner is only personally liable to lienor claimants who
enjoy a direct contractual relationship with owner. So, for example,
when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat.
s. 713.24, the Owner is no longer a proper party to the action. Owners
should not bear personal liability for construction debts owed to
subcontractors. I believe having an in rem remedy along with a
contractual remedy against the contracting party (other than Owner) is
adequate for the protection of lower tier subs and suppliers. I would
recommend that the statute be clarified, consistent with practice today,
that the Owner not be subject to personal liability when a non-privity
lienor is foreclosing its lien. Owner, under certain circumstances,
should continue to be liable to non-privity claimants for unjust
enrichment.

2.  Fla. Stat. s. 95.11 (2) (b) and (e)--   While there is an

inconsistency among the SOL's as noted, the prescribed "cure" will
prove far more harmful than the existing shortcoming (which boils down
to measuring the one year SOL period from the date of sub's last date of
furnishing vs. GC's last date of furnishing). The proposed change will
lead us right back to the bad old days when bond claims were dominated
by arguments about whether the bond was a "statutory bond" or a "common
law bond". The provision sought to be deleted at s. 95.11 (2) (e) was
actually passed to eliminate all the uncertainty and expense associated
with litigating that issue which generated great confusion in the trial
courts. The beauty of the existing language is that it doesn't matter
whether the bond is "statutory" or "common law"-- the one year period
applies. Now we are going to replace that clarity with the ambiguous
proposed language which introduces the same fog that generated the years
of unproductive and wasteful litigation on common law vs. statutory
bonds. If you want to make the SOL's all consistent, it is easy to do
without injecting all the uncertainty and ambiguity the proposed
legislation offers.

Michael R. Gibbons (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during
the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions
of the lien law to eliminate contradictory references, clarify the
statute of limitations on actions on payment bonds, tweak the statutory
claim of lien form; tweak the statutory notice of commencement form and
clean up the section dealing with electronic proof of delivery. I will
be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

CONFIDENTIALITY NOTICE: The information and all attachments contained in
this electronic communication are legally privileged and confidential
information, subject to the attorney-client privilege and intended only
for the use of intended recipients. If the reader of this message is not
an intended recipient, you are hereby notified that any review, use,
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please
notify us immediately of the error by return email and please
permanently remove any copies of this message from your system and do
not retain any copies, whether in electronic or physical form or
otherwise. Unauthorized interception of this e-mail is a violation of
federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of:
(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.

http://www.lowndes-law.com/
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[v4.30]

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I could not make the call today but write to express my views on the proposed legislative changes. The proposed changes to Ch. 85 (dealing with Owner's exposure to personal judgments on claims brought by non-privity claimants) and Ch. 95 (dropping the one year SOL for all bonds) are problematic for following reasons: 1. Fla. Stat. s. 85.021--- This unintelligible legislation admittedly cries out to be rewritten. Issue is making the Owner liable personally to non-privity lienors foreclosing their construction liens. I realize that there is a 1917 case and a 1969 case that arguably supports holding an Owner personally liable for claims of non-privity lienors. As construction law is practiced today, however, at least in my universe, the Owner is only personally liable to lienor claimants who enjoy a direct contractual relationship with owner. So, for example, when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat. s. 713.24, the Owner is no longer a proper party to the action. Owners should not bear personal liability for construction debts owed to subcontractors. I believe having an in rem remedy along with a contractual remedy against the contracting party (other than Owner) is adequate for the protection of lower tier subs and suppliers. I would recommend that the statute be clarified, consistent with practice today, that the Owner not be subject to personal liability when a non-privity lienor is foreclosing its lien. Owner, under certain circumstances, should continue to be liable to non-privity claimants for unjust enrichment. 2. Fla. Stat. s. 95.11 (2) (b) and (e)-- While there is an inconsistency among the SOL's as noted, the prescribed "cure" will prove far more harmful than the existing shortcoming (which boils down to measuring the one year SOL period from the date of sub's last date of furnishing vs. GC's last date of furnishing). The proposed change will lead us right back to the bad old days when bond claims were dominated by arguments about whether the bond was a "statutory bond" or a "common law bond". The provision sought to be deleted at s. 95.11 (2) (e) was actually passed to eliminate all the uncertainty and expense associated with litigating that issue which generated great confusion in the trial courts. The beauty of the existing language is that it doesn't matter whether the bond is "statutory" or "common law"-- the one year period applies. Now we are going to replace that clarity with the ambiguous proposed language which introduces the same fog that generated the years of unproductive and wasteful litigation on common law vs. statutory bonds. If you want to make the SOL's all consistent, it is easy to do without injecting all the uncertainty and ambiguity the proposed legislation offers. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. -------------------------------------------------------------------------- http://www.lowndes-law.com/ Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30] This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com

WL

Weintraub, Lee

Mon, Jul 11, 2011 5:12 PM

I have to say, I also agree with Michael's concerns. Although I think
the SOL issue can be fixed by deleting the reference to the GC's last
day of work in 95.11, the change to 85.021 is more problematic. I never
really understood that statute and when Larry Leiby told me about his
interpretation that it could create liability from an owner to a
non-privity sub, I still didn't see it. However, after reading
Michael's comments, I'm concerned about making this statute clearer,
with the end result being a more certain liability from an owner to a
non-privity sub outside the scope of the Lien Law. I'm going to have to
look at this harder and, if I remain uncomfortable, I'll have to contest
this at the upcoming RPPTL executive council meeting.

Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.

Lee A. Weintraub
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub@becker-poliakoff.com
http://www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Gibbons, Michael
Sent: Monday, July 11, 2011 1:01 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

I could not make the call today but write to express my views on the

proposed legislative changes. The proposed changes to Ch. 85 (dealing
with Owner's exposure to personal judgments on claims brought by
non-privity claimants) and Ch. 95 (dropping the one year SOL for all
bonds) are problematic for following reasons:

1.  Fla. Stat. s. 85.021---    This unintelligible legislation

admittedly cries out to be rewritten. Issue is making the Owner liable
personally to non-privity lienors foreclosing their construction liens.
I realize that there is a 1917 case and a 1969 case that arguably
supports holding an Owner personally liable for claims of non-privity
lienors. As construction law is practiced today, however, at least in
my universe, the Owner is only personally liable to lienor claimants who
enjoy a direct contractual relationship with owner. So, for example,
when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat.
s. 713.24, the Owner is no longer a proper party to the action. Owners
should not bear personal liability for construction debts owed to
subcontractors. I believe having an in rem remedy along with a
contractual remedy against the contracting party (other than Owner) is
adequate for the protection of lower tier subs and suppliers. I would
recommend that the statute be clarified, consistent with practice today,
that the Owner not be subject to personal liability when a non-privity
lienor is foreclosing its lien. Owner, under certain circumstances,
should continue to be liable to non-privity claimants for unjust
enrichment.

2.  Fla. Stat. s. 95.11 (2) (b) and (e)--   While there is an

inconsistency among the SOL's as noted, the prescribed "cure" will
prove far more harmful than the existing shortcoming (which boils down
to measuring the one year SOL period from the date of sub's last date of
furnishing vs. GC's last date of furnishing). The proposed change will
lead us right back to the bad old days when bond claims were dominated
by arguments about whether the bond was a "statutory bond" or a "common
law bond". The provision sought to be deleted at s. 95.11 (2) (e) was
actually passed to eliminate all the uncertainty and expense associated
with litigating that issue which generated great confusion in the trial
courts. The beauty of the existing language is that it doesn't matter
whether the bond is "statutory" or "common law"-- the one year period
applies. Now we are going to replace that clarity with the ambiguous
proposed language which introduces the same fog that generated the years
of unproductive and wasteful litigation on common law vs. statutory
bonds. If you want to make the SOL's all consistent, it is easy to do
without injecting all the uncertainty and ambiguity the proposed
legislation offers.

Michael R. Gibbons (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during
the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions
of the lien law to eliminate contradictory references, clarify the
statute of limitations on actions on payment bonds, tweak the statutory
claim of lien form; tweak the statutory notice of commencement form and
clean up the section dealing with electronic proof of delivery. I will
be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

CONFIDENTIALITY NOTICE: The information and all attachments contained in
this electronic communication are legally privileged and confidential
information, subject to the attorney-client privilege and intended only
for the use of intended recipients. If the reader of this message is not
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dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please
notify us immediately of the error by return email and please
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not retain any copies, whether in electronic or physical form or
otherwise. Unauthorized interception of this e-mail is a violation of
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TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice
contained in this communication (including any attachments) is not
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(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.

http://www.lowndes-law.com/

Notice of Confidentiality: This e-mail communication and the
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and use of the addressee(s) identified above and may contain information
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or other e-mail communications to us and/or that we will receive the
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by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
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contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances.

[v4.30]

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
which is legally privileged from disclosure and/or otherwise
confidential. If a recipient of this e-mail communication is not an
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Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
this e-mail communication and the attachment(s) hereto, if any, may
contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances. [v4.30]

I have to say, I also agree with Michael's concerns. Although I think the SOL issue can be fixed by deleting the reference to the GC's last day of work in 95.11, the change to 85.021 is more problematic. I never really understood that statute and when Larry Leiby told me about his interpretation that it could create liability from an owner to a non-privity sub, I still didn't see it. However, after reading Michael's comments, I'm concerned about making this statute clearer, with the end result being a more certain liability from an owner to a non-privity sub outside the scope of the Lien Law. I'm going to have to look at this harder and, if I remain uncomfortable, I'll have to contest this at the upcoming RPPTL executive council meeting. Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog. Lee A. Weintraub Board Certified Construction Lawyer Becker & Poliakoff, P.A. Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com http://www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael Sent: Monday, July 11, 2011 1:01 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal I could not make the call today but write to express my views on the proposed legislative changes. The proposed changes to Ch. 85 (dealing with Owner's exposure to personal judgments on claims brought by non-privity claimants) and Ch. 95 (dropping the one year SOL for all bonds) are problematic for following reasons: 1. Fla. Stat. s. 85.021--- This unintelligible legislation admittedly cries out to be rewritten. Issue is making the Owner liable personally to non-privity lienors foreclosing their construction liens. I realize that there is a 1917 case and a 1969 case that arguably supports holding an Owner personally liable for claims of non-privity lienors. As construction law is practiced today, however, at least in my universe, the Owner is only personally liable to lienor claimants who enjoy a direct contractual relationship with owner. So, for example, when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat. s. 713.24, the Owner is no longer a proper party to the action. Owners should not bear personal liability for construction debts owed to subcontractors. I believe having an in rem remedy along with a contractual remedy against the contracting party (other than Owner) is adequate for the protection of lower tier subs and suppliers. I would recommend that the statute be clarified, consistent with practice today, that the Owner not be subject to personal liability when a non-privity lienor is foreclosing its lien. Owner, under certain circumstances, should continue to be liable to non-privity claimants for unjust enrichment. 2. Fla. Stat. s. 95.11 (2) (b) and (e)-- While there is an inconsistency among the SOL's as noted, the prescribed "cure" will prove far more harmful than the existing shortcoming (which boils down to measuring the one year SOL period from the date of sub's last date of furnishing vs. GC's last date of furnishing). The proposed change will lead us right back to the bad old days when bond claims were dominated by arguments about whether the bond was a "statutory bond" or a "common law bond". The provision sought to be deleted at s. 95.11 (2) (e) was actually passed to eliminate all the uncertainty and expense associated with litigating that issue which generated great confusion in the trial courts. The beauty of the existing language is that it doesn't matter whether the bond is "statutory" or "common law"-- the one year period applies. Now we are going to replace that clarity with the ambiguous proposed language which introduces the same fog that generated the years of unproductive and wasteful litigation on common law vs. statutory bonds. If you want to make the SOL's all consistent, it is easy to do without injecting all the uncertainty and ambiguity the proposed legislation offers. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. ________________________________ <http://www.lowndes-law.com/> Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30] Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

CB

Charles B. Hernicz, Esq

Mon, Jul 11, 2011 5:44 PM

I was in a meeting and could not attend today's meeting, but I want to
comment on and disagree with one of the proposed changes in the glitch bill.
Starting on line 97, the glitch bill shows the following change:

Expiration date of notice of commencement (the expiration date may not be
before completion of construction and final payment to the contractor, but
will be 1 year from the date of recording unless a different date is
specified).

The proposed change fails to recognize and preserve the purpose for the 2011
amendment. This language, although inartfully drafted as legislation often
is, requires the owner to keep a notice of commencment open until the
project is completed. Although implied in chapter 713, that requirement
does not appear anywhere else that I can find. In the past year, various
clients on at least a half dozen different projects had NOCs expire while
work was still being performed. The owners simply recorded a new NOC,
causing prejudice to the lien rights of the GC, subs, and suppliers. There
should be something in the lien law confirming the owner's obligation to
keep the NOC open. Instead of simply striking the confusing language, I
propose the following "fix" instead:

Expiration date of notice of commencement (the expiration date may not be
before completion of construction and final payment to the contractor, but
will be 1 year from the date of recording unless a different date is
specified). The owner shall be responsible for renewing the notice of
commencement as required to ensure it does not expire before completion of
construction and final payment to the contractor.

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J.
Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during the
2012 legislative session. Attached are:

```
 Legislative Position Request Form
```
```
 Proposal
```
```
 White Paper
```

The long and short is that we are seeking to clarify certain provisions of
the lien law to eliminate contradictory references, clarify the statute of
limitations on actions on payment bonds, tweak the statutory claim of lien
form; tweak the statutory notice of commencement form and clean up the
section dealing with electronic proof of delivery. I will be on the call to
answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

CONFIDENTIALITY NOTICE: The information and all attachments contained in
this electronic communication are legally privileged and confidential
information, subject to the attorney-client privilege and intended only for
the use of intended recipients. If the reader of this message is not an
intended recipient, you are hereby notified that any review, use,
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify
us immediately of the error by return email and please permanently remove
any copies of this message from your system and do not retain any copies,
whether in electronic or physical form or otherwise. Unauthorized
interception of this e-mail is a violation of federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice contained in
this communication (including any attachments) is not intended or written to
be used, and cannot be used, for the purpose of: (1) avoiding penalties that
maybe imposed under the Internal Revenue Code or (2) promoting, marketing or
recommending to another party any transaction or matter addressed in this
communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida
Statutes Section 668.50): If this communication concerns negotiation of a
contract or agreement, UETA does not apply to this communication; contract
formation in this matter shall occur only with manually-affixed original
signatures on original documents.

I was in a meeting and could not attend today's meeting, but I want to comment on and disagree with one of the proposed changes in the glitch bill. Starting on line 97, the glitch bill shows the following change: Expiration date of notice of commencement (the expiration date may not be before completion of construction and final payment to the contractor, but will be 1 year from the date of recording unless a different date is specified). The proposed change fails to recognize and preserve the purpose for the 2011 amendment. This language, although inartfully drafted as legislation often is, requires the owner to keep a notice of commencment open until the project is completed. Although implied in chapter 713, that requirement does not appear anywhere else that I can find. In the past year, various clients on at least a half dozen different projects had NOCs expire while work was still being performed. The owners simply recorded a new NOC, causing prejudice to the lien rights of the GC, subs, and suppliers. There should be something in the lien law confirming the owner's obligation to keep the NOC open. Instead of simply striking the confusing language, I propose the following "fix" instead: Expiration date of notice of commencement (the expiration date may not be before completion of construction and final payment to the contractor, but will be 1 year from the date of recording unless a different date is specified). The owner shall be responsible for renewing the notice of commencement as required to ensure it does not expire before completion of construction and final payment to the contractor. Chuck Charles B. Hernicz, Esq. Board Certified in Construction Law by The Florida Bar Hernicz Legal Services, P.L. 15854 Bent Creek Road Wellington, FL 33414 Telephone: (561) 753-7511 Facsimile: (561) 753-7082 Chernicz@HerniczLegal.com From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.

DV

Dan Vega

Mon, Jul 11, 2011 5:46 PM

Michael, your concern about the change to 95.11 misses the mark.

First and most importantly, there is an initial obvious conflict in the statutes in question that needs to be resolved as to when the SOL on a payment bond claim starts to run. That’s priority.

Second, there is no need for a one year SOL on claims against bonds that are not required or provided for by statute such as 255.05, 337.18 or 713.23 bonds. The reasons are as follows: (1) those statutory bonds are simply that – statutory creatures to be strictly construed as they derogate the common law by providing a statutory claim/basis to get paid for something otherwise protected by contract law; and (2) the statutory bonds are required to be identified and attached to the Notice of Commencement and recorded in the public records placing the beneficiaries of those bonds on “notice” that they exist, hence the short SOL.

A bond issued on behalf of a subcontractor is simply a contract. It is not provided for or required by any statute and does not need to be recorded. As such, it should be subject to the standard 5 year SOL applicable to claims on written contracts, especially since those bonds are not recorded nor identified in the NOC.

Finally, the common law v. statutory bond dichotomy is for the most part extinct. Additionally, from my experience the argument generally centered on the position that a GC statutory bond was rendered a common law bond because it was not recorded or identified and/or attached to the NOC. Those are legitimate concerns as they impact the time requirements for serving a Notice to Contractor and/or a Notice of Non-payment as well as the time to file suit. However, those concerns are not applicable to subcontractor bonds. And for the most part, the common law bond concerns were cured by different amendments to 255.05 and 713.23 and 713.13.

In sum, I see no harm in making sure that we are all on the same page as it pertains to when the SOL starts to run on GC bond claims and that those claims against bonds not required by statute be subject to the same SOL applicable to any other contract.

Thank you.

Daniel R. Vega

Board Certified in Construction Law

Vezina, Lawrence & Piscitelli, P.A.

121 Alhambra Plaza, Suite 1604

Coral Gables, Florida 33134

Main (305) 443-2043

Fax (305) 443-2048

Cell (305) 962-5186

dvega@vlplaw.com

The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, July 11, 2011 1:01 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

I could not make the call today but write to express my views on the proposed legislative changes.  The proposed changes to Ch. 85 (dealing with Owner's exposure to personal judgments on claims brought by non-privity claimants) and Ch. 95 (dropping the one year SOL for all bonds) are problematic for following reasons:





1.  Fla. Stat. s. 85.021---    This unintelligible legislation admittedly cries out to be rewritten.  Issue is making the Owner liable personally to non-privity lienors foreclosing their construction liens.  I realize that there is a 1917 case and a 1969 case that arguably supports holding an Owner personally liable for claims of non-privity lienors.  As construction law is practiced today, however, at least in my universe, the Owner is only personally liable to lienor claimants who enjoy a direct contractual relationship with owner.  So, for example, when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat. s. 713.24, the Owner is no longer a proper party to the action.  Owners should not bear personal liability for construction debts owed to subcontractors.  I believe having an in rem remedy along with a contractual remedy against the contracting party (other than Owner) is adequate for the protection of lower tier subs and suppliers.  I would recommend that the statute be clarified, consistent with practice today, that the Owner not be subject to personal liability when a non-privity lienor is foreclosing its lien.  Owner, under certain circumstances, should continue to be liable to non-privity claimants for unjust enrichment.





2.  Fla. Stat. s. 95.11 (2) (b) and (e)--   While there is an inconsistency among the SOL's as noted, the prescribed "cure"  will prove far more harmful than the existing shortcoming (which boils down to measuring the one year SOL period from the date of sub's last date of furnishing vs. GC's last date of furnishing).  The proposed change will lead us right back to the bad old days when bond claims were dominated by arguments about whether the bond was a "statutory bond" or a "common law bond".  The provision sought to be deleted at s. 95.11 (2) (e) was actually passed to eliminate all the uncertainty and expense associated with litigating that issue which generated great confusion in the trial courts.   The beauty of the existing language is that it doesn't matter whether the bond is "statutory" or "common law"-- the one year period applies.  Now we are going to replace that clarity with the ambiguous proposed language which introduces the same fog that generated the years of unproductive and wasteful litigation on common law vs. statutory bonds.  If you want to make the SOL's all consistent, it is easy to do without injecting all the uncertainty and ambiguity the proposed legislation offers.

Michael R. Gibbons (Bio http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today’s call, please find attached the legislative committee’s proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.

http://www.lowndes-law.com/

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances.

[v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

Michael, your concern about the change to 95.11 misses the mark. First and most importantly, there is an initial obvious conflict in the statutes in question that needs to be resolved as to when the SOL on a payment bond claim starts to run. That’s priority. Second, there is no need for a one year SOL on claims against bonds that are not required or provided for by statute such as 255.05, 337.18 or 713.23 bonds. The reasons are as follows: (1) those statutory bonds are simply that – statutory creatures to be strictly construed as they derogate the common law by providing a statutory claim/basis to get paid for something otherwise protected by contract law; and (2) the statutory bonds are required to be identified and attached to the Notice of Commencement and recorded in the public records placing the beneficiaries of those bonds on “notice” that they exist, hence the short SOL. A bond issued on behalf of a subcontractor is simply a contract. It is not provided for or required by any statute and does not need to be recorded. As such, it should be subject to the standard 5 year SOL applicable to claims on written contracts, especially since those bonds are not recorded nor identified in the NOC. Finally, the common law v. statutory bond dichotomy is for the most part extinct. Additionally, from my experience the argument generally centered on the position that a GC statutory bond was rendered a common law bond because it was not recorded or identified and/or attached to the NOC. Those are legitimate concerns as they impact the time requirements for serving a Notice to Contractor and/or a Notice of Non-payment as well as the time to file suit. However, those concerns are not applicable to subcontractor bonds. And for the most part, the common law bond concerns were cured by different amendments to 255.05 and 713.23 and 713.13. In sum, I see no harm in making sure that we are all on the same page as it pertains to when the SOL starts to run on GC bond claims and that those claims against bonds not required by statute be subject to the same SOL applicable to any other contract. Thank you. Daniel R. Vega Board Certified in Construction Law Vezina, Lawrence & Piscitelli, P.A. 121 Alhambra Plaza, Suite 1604 Coral Gables, Florida 33134 Main (305) 443-2043 Fax (305) 443-2048 Cell (305) 962-5186 dvega@vlplaw.com ************************************************ The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. ************************************************ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael Sent: Monday, July 11, 2011 1:01 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal I could not make the call today but write to express my views on the proposed legislative changes. The proposed changes to Ch. 85 (dealing with Owner's exposure to personal judgments on claims brought by non-privity claimants) and Ch. 95 (dropping the one year SOL for all bonds) are problematic for following reasons: 1. Fla. Stat. s. 85.021--- This unintelligible legislation admittedly cries out to be rewritten. Issue is making the Owner liable personally to non-privity lienors foreclosing their construction liens. I realize that there is a 1917 case and a 1969 case that arguably supports holding an Owner personally liable for claims of non-privity lienors. As construction law is practiced today, however, at least in my universe, the Owner is only personally liable to lienor claimants who enjoy a direct contractual relationship with owner. So, for example, when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat. s. 713.24, the Owner is no longer a proper party to the action. Owners should not bear personal liability for construction debts owed to subcontractors. I believe having an in rem remedy along with a contractual remedy against the contracting party (other than Owner) is adequate for the protection of lower tier subs and suppliers. I would recommend that the statute be clarified, consistent with practice today, that the Owner not be subject to personal liability when a non-privity lienor is foreclosing its lien. Owner, under certain circumstances, should continue to be liable to non-privity claimants for unjust enrichment. 2. Fla. Stat. s. 95.11 (2) (b) and (e)-- While there is an inconsistency among the SOL's as noted, the prescribed "cure" will prove far more harmful than the existing shortcoming (which boils down to measuring the one year SOL period from the date of sub's last date of furnishing vs. GC's last date of furnishing). The proposed change will lead us right back to the bad old days when bond claims were dominated by arguments about whether the bond was a "statutory bond" or a "common law bond". The provision sought to be deleted at s. 95.11 (2) (e) was actually passed to eliminate all the uncertainty and expense associated with litigating that issue which generated great confusion in the trial courts. The beauty of the existing language is that it doesn't matter whether the bond is "statutory" or "common law"-- the one year period applies. Now we are going to replace that clarity with the ambiguous proposed language which introduces the same fog that generated the years of unproductive and wasteful litigation on common law vs. statutory bonds. If you want to make the SOL's all consistent, it is easy to do without injecting all the uncertainty and ambiguity the proposed legislation offers. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today’s call, please find attached the legislative committee’s proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. ________________________________ <http://www.lowndes-law.com/> Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30] Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]

GM

Gibbons, Michael

Mon, Jul 11, 2011 5:48 PM

The radical part of the new language is that it would make the owner
liable personally for the non-privity lienor's attorney's fees as well.
While owners have had exposure, under limited circumstances, to
non-privity lienors making a claim for unjust enrichment, that common
law claim did not include atty's fees.

Michael R. Gibbons (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Weintraub, Lee
Sent: Monday, July 11, 2011 1:12 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

I have to say, I also agree with Michael's concerns. Although I think
the SOL issue can be fixed by deleting the reference to the GC's last
day of work in 95.11, the change to 85.021 is more problematic. I never
really understood that statute and when Larry Leiby told me about his
interpretation that it could create liability from an owner to a
non-privity sub, I still didn't see it. However, after reading
Michael's comments, I'm concerned about making this statute clearer,
with the end result being a more certain liability from an owner to a
non-privity sub outside the scope of the Lien Law. I'm going to have to
look at this harder and, if I remain uncomfortable, I'll have to contest
this at the upcoming RPPTL executive council meeting.

Click here http://www.floridaconstructionlawauthority.com/ to
subscribe to our complimentary Florida Construction Law Blog.

http://www.becker-poliakoff.com/ Lee A. Weintraub
Board Certified Construction Lawyer

Becker & Poliakoff, P.A.

Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.com
www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority. The Becker &
Poliakoff Client CARE Center is available for questions, concerns and
suggestions. Please contact us at 954.364.6090 or via email at
CARE@becker-poliakoff.com mailto:CARE@becker-poliakoff.com .

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Gibbons, Michael
Sent: Monday, July 11, 2011 1:01 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

I could not make the call today but write to express my views on the

proposed legislative changes. The proposed changes to Ch. 85 (dealing
with Owner's exposure to personal judgments on claims brought by
non-privity claimants) and Ch. 95 (dropping the one year SOL for all
bonds) are problematic for following reasons:

1.  Fla. Stat. s. 85.021---    This unintelligible legislation

admittedly cries out to be rewritten. Issue is making the Owner liable
personally to non-privity lienors foreclosing their construction liens.
I realize that there is a 1917 case and a 1969 case that arguably
supports holding an Owner personally liable for claims of non-privity
lienors. As construction law is practiced today, however, at least in
my universe, the Owner is only personally liable to lienor claimants who
enjoy a direct contractual relationship with owner. So, for example,
when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat.
s. 713.24, the Owner is no longer a proper party to the action. Owners
should not bear personal liability for construction debts owed to
subcontractors. I believe having an in rem remedy along with a
contractual remedy against the contracting party (other than Owner) is
adequate for the protection of lower tier subs and suppliers. I would
recommend that the statute be clarified, consistent with practice today,
that the Owner not be subject to personal liability when a non-privity
lienor is foreclosing its lien. Owner, under certain circumstances,
should continue to be liable to non-privity claimants for unjust
enrichment.

2.  Fla. Stat. s. 95.11 (2) (b) and (e)--   While there is an

inconsistency among the SOL's as noted, the prescribed "cure" will
prove far more harmful than the existing shortcoming (which boils down
to measuring the one year SOL period from the date of sub's last date of
furnishing vs. GC's last date of furnishing). The proposed change will
lead us right back to the bad old days when bond claims were dominated
by arguments about whether the bond was a "statutory bond" or a "common
law bond". The provision sought to be deleted at s. 95.11 (2) (e) was
actually passed to eliminate all the uncertainty and expense associated
with litigating that issue which generated great confusion in the trial
courts. The beauty of the existing language is that it doesn't matter
whether the bond is "statutory" or "common law"-- the one year period
applies. Now we are going to replace that clarity with the ambiguous
proposed language which introduces the same fog that generated the years
of unproductive and wasteful litigation on common law vs. statutory
bonds. If you want to make the SOL's all consistent, it is easy to do
without injecting all the uncertainty and ambiguity the proposed
legislation offers.

Michael R. Gibbons (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during
the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions
of the lien law to eliminate contradictory references, clarify the
statute of limitations on actions on payment bonds, tweak the statutory
claim of lien form; tweak the statutory notice of commencement form and
clean up the section dealing with electronic proof of delivery. I will
be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

CONFIDENTIALITY NOTICE: The information and all attachments contained in
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prohibited. If you have received this communication in error, please
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TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
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(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.

http://www.lowndes-law.com/

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and use of the addressee(s) identified above and may contain information
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or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
this e-mail communication and the attachment(s) hereto, if any, may
contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances.

[v4.30]

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
which is legally privileged from disclosure and/or otherwise
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physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
this e-mail communication and the attachment(s) hereto, if any, may
contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances. [v4.30]

This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com

The radical part of the new language is that it would make the owner liable personally for the non-privity lienor's attorney's fees as well. While owners have had exposure, under limited circumstances, to non-privity lienors making a claim for unjust enrichment, that common law claim did not include atty's fees. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Monday, July 11, 2011 1:12 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal I have to say, I also agree with Michael's concerns. Although I think the SOL issue can be fixed by deleting the reference to the GC's last day of work in 95.11, the change to 85.021 is more problematic. I never really understood that statute and when Larry Leiby told me about his interpretation that it could create liability from an owner to a non-privity sub, I still didn't see it. However, after reading Michael's comments, I'm concerned about making this statute clearer, with the end result being a more certain liability from an owner to a non-privity sub outside the scope of the Lien Law. I'm going to have to look at this harder and, if I remain uncomfortable, I'll have to contest this at the upcoming RPPTL executive council meeting. Click here <http://www.floridaconstructionlawauthority.com/> to subscribe to our complimentary Florida Construction Law Blog. <http://www.becker-poliakoff.com/> Lee A. Weintraub Board Certified Construction Lawyer Becker & Poliakoff, P.A. Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com <mailto:CARE@becker-poliakoff.com> . ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael Sent: Monday, July 11, 2011 1:01 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal I could not make the call today but write to express my views on the proposed legislative changes. The proposed changes to Ch. 85 (dealing with Owner's exposure to personal judgments on claims brought by non-privity claimants) and Ch. 95 (dropping the one year SOL for all bonds) are problematic for following reasons: 1. Fla. Stat. s. 85.021--- This unintelligible legislation admittedly cries out to be rewritten. Issue is making the Owner liable personally to non-privity lienors foreclosing their construction liens. I realize that there is a 1917 case and a 1969 case that arguably supports holding an Owner personally liable for claims of non-privity lienors. As construction law is practiced today, however, at least in my universe, the Owner is only personally liable to lienor claimants who enjoy a direct contractual relationship with owner. So, for example, when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat. s. 713.24, the Owner is no longer a proper party to the action. Owners should not bear personal liability for construction debts owed to subcontractors. I believe having an in rem remedy along with a contractual remedy against the contracting party (other than Owner) is adequate for the protection of lower tier subs and suppliers. I would recommend that the statute be clarified, consistent with practice today, that the Owner not be subject to personal liability when a non-privity lienor is foreclosing its lien. Owner, under certain circumstances, should continue to be liable to non-privity claimants for unjust enrichment. 2. Fla. Stat. s. 95.11 (2) (b) and (e)-- While there is an inconsistency among the SOL's as noted, the prescribed "cure" will prove far more harmful than the existing shortcoming (which boils down to measuring the one year SOL period from the date of sub's last date of furnishing vs. GC's last date of furnishing). The proposed change will lead us right back to the bad old days when bond claims were dominated by arguments about whether the bond was a "statutory bond" or a "common law bond". The provision sought to be deleted at s. 95.11 (2) (e) was actually passed to eliminate all the uncertainty and expense associated with litigating that issue which generated great confusion in the trial courts. The beauty of the existing language is that it doesn't matter whether the bond is "statutory" or "common law"-- the one year period applies. Now we are going to replace that clarity with the ambiguous proposed language which introduces the same fog that generated the years of unproductive and wasteful litigation on common law vs. statutory bonds. If you want to make the SOL's all consistent, it is easy to do without injecting all the uncertainty and ambiguity the proposed legislation offers. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents. ________________________________ <http://www.lowndes-law.com/> Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30] Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30] This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com

HC

Howard Cohen

Mon, Jul 11, 2011 6:14 PM

What would be the result if the owner filed to keep the N/C in place during the entire job under the proposed change?

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Monday, July 11, 2011 1:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

I was in a meeting and could not attend today's meeting, but I want to comment on and disagree with one of the proposed changes in the glitch bill. Starting on line 97, the glitch bill shows the following change:

Expiration date of notice of commencement (the expiration date may not be before completion of construction and final payment to the contractor, but will be 1 year from the date of recording unless a different date is specified).

The proposed change fails to recognize and preserve the purpose for the 2011 amendment. This language, although inartfully drafted as legislation often is, requires the owner to keep a notice of commencment open until the project is completed. Although implied in chapter 713, that requirement does not appear anywhere else that I can find. In the past year, various clients on at least a half dozen different projects had NOCs expire while work was still being performed. The owners simply recorded a new NOC, causing prejudice to the lien rights of the GC, subs, and suppliers. There should be something in the lien law confirming the owner's obligation to keep the NOC open. Instead of simply striking the confusing language, I propose the following "fix" instead:

Expiration date of notice of commencement (the expiration date may not be before completion of construction and final payment to the contractor, but will be 1 year from the date of recording unless a different date is specified). The owner shall be responsible for renewing the notice of commencement as required to ensure it does not expire before completion of construction and final payment to the contractor.

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions.

Thanks,
Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

[cid:image001.jpg@01CC3FD4.DC8E6D40]

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

[cid:image002.jpg@01CC3FD4.DC8E6D40]

CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.

What would be the result if the owner filed to keep the N/C in place during the entire job under the proposed change? From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq Sent: Monday, July 11, 2011 1:44 PM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal I was in a meeting and could not attend today's meeting, but I want to comment on and disagree with one of the proposed changes in the glitch bill. Starting on line 97, the glitch bill shows the following change: Expiration date of notice of commencement (the expiration date may not be before completion of construction and final payment to the contractor, but will be 1 year from the date of recording unless a different date is specified). The proposed change fails to recognize and preserve the purpose for the 2011 amendment. This language, although inartfully drafted as legislation often is, requires the owner to keep a notice of commencment open until the project is completed. Although implied in chapter 713, that requirement does not appear anywhere else that I can find. In the past year, various clients on at least a half dozen different projects had NOCs expire while work was still being performed. The owners simply recorded a new NOC, causing prejudice to the lien rights of the GC, subs, and suppliers. There should be something in the lien law confirming the owner's obligation to keep the NOC open. Instead of simply striking the confusing language, I propose the following "fix" instead: Expiration date of notice of commencement (the expiration date may not be before completion of construction and final payment to the contractor, but will be 1 year from the date of recording unless a different date is specified). The owner shall be responsible for renewing the notice of commencement as required to ensure it does not expire before completion of construction and final payment to the contractor. Chuck Charles B. Hernicz, Esq. Board Certified in Construction Law by The Florida Bar Hernicz Legal Services, P.L. 15854 Bent Creek Road Wellington, FL 33414 Telephone: (561) 753-7511 Facsimile: (561) 753-7082 Chernicz@HerniczLegal.com From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney [cid:image001.jpg@01CC3FD4.DC8E6D40] 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com<http://www.tritthenderson.com/> [cid:image002.jpg@01CC3FD4.DC8E6D40] CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law. TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication. Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.

GM

Gibbons, Michael

Mon, Jul 11, 2011 6:38 PM

We are in agreement that the various SOL provisions are in conflict
and need some "tightening up". I disagree with the proposed manner of
eliminating the existing inconsistencies. The fatal flaw in the
proposed language is abandoning the existing reference to "principal on
the bond" and replacing it with the ambiguous "bond governed by the
applicable provisions of Fla. Stat. s. 255.05 and 713.23". This
language replaces certainty with uncertainty and represents a "fix" we
don't need.

I would concede that certainty and predictibility, while important,
are not the only polestars for good legislation. I would also agree
that GC's and their sureties should not benefit when they fail to list
surety information on a NOC or fail to record Payment Bond in public
records on public projects. Those limited circumstances can be
adequately addressed by adding tolling language that tolls the running
of the one year period until the bonds are recorded in the public
records or a corrected NOC is recorded listing the omitted surety and
attaching the payment bond. A longer SOL for unrecorded subcontractor
payment bonds may also be appropriate.

What we don't need is the proposed ambiguous language that invites
attorneys to litigate hypertechnical issues of whether the bond in
question is "governed by" 255.05 or 713.23. Use the existing reference
to "bonds on which the principal is a contractor ... for private work as
well as public work". If it ain't broke don't "fix" it.

Michael R. Gibbons (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Dan
Vega
Sent: Monday, July 11, 2011 1:46 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

Michael, your concern about the change to 95.11 misses the mark.

First and most importantly, there is an initial obvious conflict in the
statutes in question that needs to be resolved as to when the SOL on a
payment bond claim starts to run. That's priority.

Second, there is no need for a one year SOL on claims against bonds that
are not required or provided for by statute such as 255.05, 337.18 or
713.23 bonds. The reasons are as follows: (1) those statutory bonds
are simply that - statutory creatures to be strictly construed as they
derogate the common law by providing a statutory claim/basis to get paid
for something otherwise protected by contract law; and (2) the statutory
bonds are required to be identified and attached to the Notice of
Commencement and recorded in the public records placing the
beneficiaries of those bonds on "notice" that they exist, hence the
short SOL.

A bond issued on behalf of a subcontractor is simply a contract. It is
not provided for or required by any statute and does not need to be
recorded. As such, it should be subject to the standard 5 year SOL
applicable to claims on written contracts, especially since those bonds
are not recorded nor identified in the NOC.

Finally, the common law v. statutory bond dichotomy is for the most part
extinct. Additionally, from my experience the argument generally
centered on the position that a GC statutory bond was rendered a common
law bond because it was not recorded or identified and/or attached to
the NOC. Those are legitimate concerns as they impact the time
requirements for serving a Notice to Contractor and/or a Notice of
Non-payment as well as the time to file suit. However, those concerns
are not applicable to subcontractor bonds. And for the most part, the
common law bond concerns were cured by different amendments to 255.05
and 713.23 and 713.13.

In sum, I see no harm in making sure that we are all on the same page as
it pertains to when the SOL starts to run on GC bond claims and that
those claims against bonds not required by statute be subject to the
same SOL applicable to any other contract.

Thank you.

Daniel R. Vega

Board Certified in Construction Law

Vezina, Lawrence & Piscitelli, P.A.

121 Alhambra Plaza, Suite 1604

Coral Gables, Florida 33134

Main (305) 443-2043

Fax (305) 443-2048

Cell (305) 962-5186

dvega@vlplaw.com

The information contained in this e-mail message is intended only for
the personal and confidential use of the recipient(s) named above.
This message may be an attorney-client communication and as such is
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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Gibbons, Michael
Sent: Monday, July 11, 2011 1:01 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

I could not make the call today but write to express my views on the

proposed legislative changes. The proposed changes to Ch. 85 (dealing
with Owner's exposure to personal judgments on claims brought by
non-privity claimants) and Ch. 95 (dropping the one year SOL for all
bonds) are problematic for following reasons:

1.  Fla. Stat. s. 85.021---    This unintelligible legislation

admittedly cries out to be rewritten. Issue is making the Owner liable
personally to non-privity lienors foreclosing their construction liens.
I realize that there is a 1917 case and a 1969 case that arguably
supports holding an Owner personally liable for claims of non-privity
lienors. As construction law is practiced today, however, at least in
my universe, the Owner is only personally liable to lienor claimants who
enjoy a direct contractual relationship with owner. So, for example,
when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat.
s. 713.24, the Owner is no longer a proper party to the action. Owners
should not bear personal liability for construction debts owed to
subcontractors. I believe having an in rem remedy along with a
contractual remedy against the contracting party (other than Owner) is
adequate for the protection of lower tier subs and suppliers. I would
recommend that the statute be clarified, consistent with practice today,
that the Owner not be subject to personal liability when a non-privity
lienor is foreclosing its lien. Owner, under certain circumstances,
should continue to be liable to non-privity claimants for unjust
enrichment.

2.  Fla. Stat. s. 95.11 (2) (b) and (e)--   While there is an

inconsistency among the SOL's as noted, the prescribed "cure" will
prove far more harmful than the existing shortcoming (which boils down
to measuring the one year SOL period from the date of sub's last date of
furnishing vs. GC's last date of furnishing). The proposed change will
lead us right back to the bad old days when bond claims were dominated
by arguments about whether the bond was a "statutory bond" or a "common
law bond". The provision sought to be deleted at s. 95.11 (2) (e) was
actually passed to eliminate all the uncertainty and expense associated
with litigating that issue which generated great confusion in the trial
courts. The beauty of the existing language is that it doesn't matter
whether the bond is "statutory" or "common law"-- the one year period
applies. Now we are going to replace that clarity with the ambiguous
proposed language which introduces the same fog that generated the years
of unproductive and wasteful litigation on common law vs. statutory
bonds. If you want to make the SOL's all consistent, it is easy to do
without injecting all the uncertainty and ambiguity the proposed
legislation offers.

Michael R. Gibbons (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com http://www.lowndes-law.com/

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during
the 2012 legislative session. Attached are:

```
  Legislative Position Request Form
```
```
  Proposal
```
```
  White Paper
```

The long and short is that we are seeking to clarify certain provisions
of the lien law to eliminate contradictory references, clarify the
statute of limitations on actions on payment bonds, tweak the statutory
claim of lien form; tweak the statutory notice of commencement form and
clean up the section dealing with electronic proof of delivery. I will
be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@atritt.com mailto:%5Be-mail%5D
www.tritthenderson.com http://www.tritthenderson.com/

CONFIDENTIALITY NOTICE: The information and all attachments contained in
this electronic communication are legally privileged and confidential
information, subject to the attorney-client privilege and intended only
for the use of intended recipients. If the reader of this message is not
an intended recipient, you are hereby notified that any review, use,
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please
notify us immediately of the error by return email and please
permanently remove any copies of this message from your system and do
not retain any copies, whether in electronic or physical form or
otherwise. Unauthorized interception of this e-mail is a violation of
federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of:
(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.

http://www.lowndes-law.com/

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
which is legally privileged from disclosure and/or otherwise
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addressee (or an authorized representative of an addressee), such
recipient is hereby advised that any review, disclosure, reproduction,
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communication (or any information contained herein) is strictly
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communication in error, please advise the sender of that circumstance
either by reply e-mail or by telephone at (800) 356-6818, immediately
delete this e-mail communication from any computer and destroy all
physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
this e-mail communication and the attachment(s) hereto, if any, may
contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances.

[v4.30]

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
which is legally privileged from disclosure and/or otherwise
confidential. If a recipient of this e-mail communication is not an
addressee (or an authorized representative of an addressee), such
recipient is hereby advised that any review, disclosure, reproduction,
re-transmission or other dissemination or use of this e-mail
communication (or any information contained herein) is strictly
prohibited. If you are not an addressee and have received this e-mail
communication in error, please advise the sender of that circumstance
either by reply e-mail or by telephone at (800) 356-6818, immediately
delete this e-mail communication from any computer and destroy all
physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
this e-mail communication and the attachment(s) hereto, if any, may
contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
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We are in agreement that the various SOL provisions are in conflict and need some "tightening up". I disagree with the proposed manner of eliminating the existing inconsistencies. The fatal flaw in the proposed language is abandoning the existing reference to "principal on the bond" and replacing it with the ambiguous "bond governed by the applicable provisions of Fla. Stat. s. 255.05 and 713.23". This language replaces certainty with uncertainty and represents a "fix" we don't need. I would concede that certainty and predictibility, while important, are not the only polestars for good legislation. I would also agree that GC's and their sureties should not benefit when they fail to list surety information on a NOC or fail to record Payment Bond in public records on public projects. Those limited circumstances can be adequately addressed by adding tolling language that tolls the running of the one year period until the bonds are recorded in the public records or a corrected NOC is recorded listing the omitted surety and attaching the payment bond. A longer SOL for unrecorded subcontractor payment bonds may also be appropriate. What we don't need is the proposed ambiguous language that invites attorneys to litigate hypertechnical issues of whether the bond in question is "governed by" 255.05 or 713.23. Use the existing reference to "bonds on which the principal is a contractor ... for private work as well as public work". If it ain't broke don't "fix" it. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Dan Vega Sent: Monday, July 11, 2011 1:46 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal Michael, your concern about the change to 95.11 misses the mark. First and most importantly, there is an initial obvious conflict in the statutes in question that needs to be resolved as to when the SOL on a payment bond claim starts to run. That's priority. Second, there is no need for a one year SOL on claims against bonds that are not required or provided for by statute such as 255.05, 337.18 or 713.23 bonds. The reasons are as follows: (1) those statutory bonds are simply that - statutory creatures to be strictly construed as they derogate the common law by providing a statutory claim/basis to get paid for something otherwise protected by contract law; and (2) the statutory bonds are required to be identified and attached to the Notice of Commencement and recorded in the public records placing the beneficiaries of those bonds on "notice" that they exist, hence the short SOL. A bond issued on behalf of a subcontractor is simply a contract. It is not provided for or required by any statute and does not need to be recorded. As such, it should be subject to the standard 5 year SOL applicable to claims on written contracts, especially since those bonds are not recorded nor identified in the NOC. Finally, the common law v. statutory bond dichotomy is for the most part extinct. Additionally, from my experience the argument generally centered on the position that a GC statutory bond was rendered a common law bond because it was not recorded or identified and/or attached to the NOC. Those are legitimate concerns as they impact the time requirements for serving a Notice to Contractor and/or a Notice of Non-payment as well as the time to file suit. However, those concerns are not applicable to subcontractor bonds. And for the most part, the common law bond concerns were cured by different amendments to 255.05 and 713.23 and 713.13. In sum, I see no harm in making sure that we are all on the same page as it pertains to when the SOL starts to run on GC bond claims and that those claims against bonds not required by statute be subject to the same SOL applicable to any other contract. Thank you. Daniel R. Vega Board Certified in Construction Law Vezina, Lawrence & Piscitelli, P.A. 121 Alhambra Plaza, Suite 1604 Coral Gables, Florida 33134 Main (305) 443-2043 Fax (305) 443-2048 Cell (305) 962-5186 dvega@vlplaw.com ************************************************ The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. ************************************************ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael Sent: Monday, July 11, 2011 1:01 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal I could not make the call today but write to express my views on the proposed legislative changes. The proposed changes to Ch. 85 (dealing with Owner's exposure to personal judgments on claims brought by non-privity claimants) and Ch. 95 (dropping the one year SOL for all bonds) are problematic for following reasons: 1. Fla. Stat. s. 85.021--- This unintelligible legislation admittedly cries out to be rewritten. Issue is making the Owner liable personally to non-privity lienors foreclosing their construction liens. I realize that there is a 1917 case and a 1969 case that arguably supports holding an Owner personally liable for claims of non-privity lienors. As construction law is practiced today, however, at least in my universe, the Owner is only personally liable to lienor claimants who enjoy a direct contractual relationship with owner. So, for example, when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat. s. 713.24, the Owner is no longer a proper party to the action. Owners should not bear personal liability for construction debts owed to subcontractors. I believe having an in rem remedy along with a contractual remedy against the contracting party (other than Owner) is adequate for the protection of lower tier subs and suppliers. I would recommend that the statute be clarified, consistent with practice today, that the Owner not be subject to personal liability when a non-privity lienor is foreclosing its lien. Owner, under certain circumstances, should continue to be liable to non-privity claimants for unjust enrichment. 2. Fla. Stat. s. 95.11 (2) (b) and (e)-- While there is an inconsistency among the SOL's as noted, the prescribed "cure" will prove far more harmful than the existing shortcoming (which boils down to measuring the one year SOL period from the date of sub's last date of furnishing vs. GC's last date of furnishing). The proposed change will lead us right back to the bad old days when bond claims were dominated by arguments about whether the bond was a "statutory bond" or a "common law bond". The provision sought to be deleted at s. 95.11 (2) (e) was actually passed to eliminate all the uncertainty and expense associated with litigating that issue which generated great confusion in the trial courts. The beauty of the existing language is that it doesn't matter whether the bond is "statutory" or "common law"-- the one year period applies. Now we are going to replace that clarity with the ambiguous proposed language which introduces the same fog that generated the years of unproductive and wasteful litigation on common law vs. statutory bonds. If you want to make the SOL's all consistent, it is easy to do without injecting all the uncertainty and ambiguity the proposed legislation offers. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com <mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. 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