FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman...
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.com
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
TAX ADVICE DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN.
PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
Robert
They must have intended "materials supplied to the project" as opposed to "materials supplied to the lienor." Otherwise, I am lost.
Tim
Sent from my iPhone
On Aug 10, 2013, at 2:21 PM, "Roberts, Hardy L." <hroberts@carltonfields.commailto:hroberts@carltonfields.com> wrote:
Please see the request below from Robert Worman…
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
TAX ADVICE DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN.
PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
<Attaway Elec Inc v Kelsey Const Inc.rtf> _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org<mailto:CLC-Discussion@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/clc-discussion
While the language is unfortunate, I don't think it will have much impact in practice for two reasons. First, the Lien Transfer Bond is a contract running in favor of a specified lienor whose lien has been transferred to the security of the bond. Other persons simply don't have standing to sue the Surety on the lien transfer bond. Besides the standing issue, in order for lower tiered materialman or sub-subcontractor to have a claim on any lien transfer bond, that materialman or sub-subcontractor must be able to establish that it has a valid and enforceable claim of lien. And if it has a perfected claim of lien, then it will either be foreclosing on the real property or have its very own lien transfer bond as substituted security (with no need to piggyback on some other lienor's lien transfer bond).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image003.jpg@01CE9749.F94839B0]
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman...
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
TAX ADVICE DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN.
PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com
Did Fred send out his report to the entire ListServe this morning?
Claire
Claramargaret H. Groover, Esquire
Florida Bar Board Certified in Construction Law
Florida Supreme Court Certified Circuit Civil and Appellate Mediator
Bank of America Building Post Office Box 547713
390 North Orange Avenue Orlando, Florida 32854-7713
Suite 2300
Orlando, Florida 32801 P: 407.982.4133
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion (clc-discussion@lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
While the language is unfortunate, I don't think it will have much impact in practice for two reasons. First, the Lien Transfer Bond is a contract running in favor of a specified lienor whose lien has been transferred to the security of the bond. Other persons simply don't have standing to sue the Surety on the lien transfer bond. Besides the standing issue, in order for lower tiered materialman or sub-subcontractor to have a claim on any lien transfer bond, that materialman or sub-subcontractor must be able to establish that it has a valid and enforceable claim of lien. And if it has a perfected claim of lien, then it will either be foreclosing on the real property or have its very own lien transfer bond as substituted security (with no need to piggyback on some other lienor's lien transfer bond).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image001.jpg@01CE9751.E4AC3800]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman...
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
TAX ADVICE DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN.
PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
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:
I don't think it is that simple. As you point out the lien transfer
bond is a contract running in favor of a specified lienor. That lienor has
a statutory chose in action against the surety, assuming it has properly
complied with the prerequisites of ch 713 (i.e. has a valid lien). That
chose in action can be voluntarily assigned to a third party creditor, or
taken by a third party creditor involuntarily through a valid legal
proceeding. Choses in action are typically taken involuntarily through
proceedings supplementary under Fla. Stat. ch 56, rather than garnishment
proceedings, however, to the extent that such an action is deemed a "debt"
by the court, then it could be taken by a garnishment proceeding.
Regardless of how acquired, a valid argument exists that the third party
creditor stands in the shoes of the lienor who originally owned the chose in
action and is capable of asserting the claim in the name of that original
lienor. As a result, standing is not an impediment nor, in my opinion, must
such a creditor have a valid claim of lien in its own right to exercise such
a remedy. Of course this comes from the prospective of someone who
frequently represents third tier material suppliers, so it could be wishful
thinking!
Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824
THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL
AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED
RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION
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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons,
Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion
(clc-discussion@lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
While the language is unfortunate, I don't think it will have much impact
in practice for two reasons. First, the Lien Transfer Bond is a contract
running in favor of a specified lienor whose lien has been transferred to
the security of the bond. Other persons simply don't have standing to sue
the Surety on the lien transfer bond. Besides the standing issue, in order
for lower tiered materialman or sub-subcontractor to have a claim on any
lien transfer bond, that materialman or sub-subcontractor must be able to
establish that it has a valid and enforceable claim of lien. And if it has
a perfected claim of lien, then it will either be foreclosing on the real
property or have its very own lien transfer bond as substituted security
(with no need to piggyback on some other lienor's lien transfer bond).
Michael R. Gibbons ( http://lowndes-law.com/our-people/michael-r-gibbons
Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: mailto:michael.gibbons@lowndes-law.com
michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com/ http://www.lowndes-law.com
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts,
Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman.
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee
to address?
Please review the attached case which just came out. I would appreciate
comments on the dicta at the end of the 2d paragraph as to the theory under
which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.com
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS
CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE
INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY,
COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE
RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL
OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT
IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR
MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY
NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
TAX ADVICE DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY
THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE
CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS
OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE
USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE
CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY
MATTERS ADDRESSED HEREIN.
PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS
ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR
THAT PURPOSE.
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]
You raise a good point Steve. I was addressing my comment to the Court's language that appears to have [mis]construed 713.24 to permit lower tiered subs and suppliers, in the ordinary course, to assert a claim on a lien transfer bond posted in favor of an entity higher in the food chain. I'll let the surety mavens comment on the merits of your chose in action argument (which, without researching it, appears compelling).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image004.jpg@01CE9763.4629BCE0]
From: Steve Thompson [mailto:sthompson@thompsonbrookslaw.com]
Sent: Monday, August 12, 2013 1:38 PM
To: Gibbons, Michael; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: RE: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
Michael:
I don't think it is that simple. As you point out the lien transfer bond is a contract running in favor of a specified lienor. That lienor has a statutory chose in action against the surety, assuming it has properly complied with the prerequisites of ch 713 (i.e. has a valid lien). That chose in action can be voluntarily assigned to a third party creditor, or taken by a third party creditor involuntarily through a valid legal proceeding. Choses in action are typically taken involuntarily through proceedings supplementary under Fla. Stat. ch 56, rather than garnishment proceedings, however, to the extent that such an action is deemed a "debt" by the court, then it could be taken by a garnishment proceeding. Regardless of how acquired, a valid argument exists that the third party creditor stands in the shoes of the lienor who originally owned the chose in action and is capable of asserting the claim in the name of that original lienor. As a result, standing is not an impediment nor, in my opinion, must such a creditor have a valid claim of lien in its own right to exercise such a remedy. Of course this comes from the prospective of someone who frequently represents third tier material suppliers, so it could be wishful thinking!
Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824
THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL
AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED
RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION
IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE
AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR;
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
While the language is unfortunate, I don't think it will have much impact in practice for two reasons. First, the Lien Transfer Bond is a contract running in favor of a specified lienor whose lien has been transferred to the security of the bond. Other persons simply don't have standing to sue the Surety on the lien transfer bond. Besides the standing issue, in order for lower tiered materialman or sub-subcontractor to have a claim on any lien transfer bond, that materialman or sub-subcontractor must be able to establish that it has a valid and enforceable claim of lien. And if it has a perfected claim of lien, then it will either be foreclosing on the real property or have its very own lien transfer bond as substituted security (with no need to piggyback on some other lienor's lien transfer bond).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image003.jpg@01CE9763.44B3E5C0]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman...
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
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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]
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Does anyone have the cite to the recent case that held a Q. A. cannot be held individually liable for defective work by the Corporate CGC, following Murthy v. N. Sinha. Thanks, Lep
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 1:53 PM
To: 'Steve Thompson'; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
You raise a good point Steve. I was addressing my comment to the Court's language that appears to have [mis]construed 713.24 to permit lower tiered subs and suppliers, in the ordinary course, to assert a claim on a lien transfer bond posted in favor of an entity higher in the food chain. I'll let the surety mavens comment on the merits of your chose in action argument (which, without researching it, appears compelling).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image001.jpg@01CEA41F.A38DBE40]
From: Steve Thompson [mailto:sthompson@thompsonbrookslaw.com]
Sent: Monday, August 12, 2013 1:38 PM
To: Gibbons, Michael; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: RE: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
Michael:
I don't think it is that simple. As you point out the lien transfer bond is a contract running in favor of a specified lienor. That lienor has a statutory chose in action against the surety, assuming it has properly complied with the prerequisites of ch 713 (i.e. has a valid lien). That chose in action can be voluntarily assigned to a third party creditor, or taken by a third party creditor involuntarily through a valid legal proceeding. Choses in action are typically taken involuntarily through proceedings supplementary under Fla. Stat. ch 56, rather than garnishment proceedings, however, to the extent that such an action is deemed a "debt" by the court, then it could be taken by a garnishment proceeding. Regardless of how acquired, a valid argument exists that the third party creditor stands in the shoes of the lienor who originally owned the chose in action and is capable of asserting the claim in the name of that original lienor. As a result, standing is not an impediment nor, in my opinion, must such a creditor have a valid claim of lien in its own right to exercise such a remedy. Of course this comes from the prospective of someone who frequently represents third tier material suppliers, so it could be wishful thinking!
Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824
THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL
AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED
RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION
IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE
AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR;
AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT
BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE
SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER
DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS
WITHOUT THE EXPRESS CONSENT OF THOMPSON & BROOKS. THANK YOU.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
While the language is unfortunate, I don't think it will have much impact in practice for two reasons. First, the Lien Transfer Bond is a contract running in favor of a specified lienor whose lien has been transferred to the security of the bond. Other persons simply don't have standing to sue the Surety on the lien transfer bond. Besides the standing issue, in order for lower tiered materialman or sub-subcontractor to have a claim on any lien transfer bond, that materialman or sub-subcontractor must be able to establish that it has a valid and enforceable claim of lien. And if it has a perfected claim of lien, then it will either be foreclosing on the real property or have its very own lien transfer bond as substituted security (with no need to piggyback on some other lienor's lien transfer bond).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image001.jpg@01CEA41F.A38DBE40]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman...
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE. PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
TAX ADVICE DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN.
PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
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]
The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.
Is this the case you're looking for?
I have the Opinion and briefs filed in 2nd DCA and Supreme Court at my office if you need them. Let me know.
Clark H. SCHERER, III, Appellant, v. The VILLAS DEL VERDE HOMEOWNERS ASSOCIATION, INC., Appellee.
55 So.3d 602 (2011)
No. 2D09-5547.file:///scholar?scidkt=16251645311099661855&as_sdt=2&hl=en
District Court of Appeal of Florida, Second District.
January 19, 2011.
Best regards,
Joseph D. Garrity, Esq.
In an effort to respond timely this email is being sent using voice recognition software please excuse any typos or mis-transcribed language.
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On Aug 28, 2013, at 6:52 PM, "AAdams@foley.commailto:AAdams@foley.com" <AAdams@foley.commailto:AAdams@foley.com> wrote:
Does anyone have the cite to the recent case that held a Q. A. cannot be held individually liable for defective work by the Corporate CGC, following Murthy v. N. Sinha. Thanks, Lep
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 1:53 PM
To: 'Steve Thompson'; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
You raise a good point Steve. I was addressing my comment to the Court’s language that appears to have [mis]construed 713.24 to permit lower tiered subs and suppliers, in the ordinary course, to assert a claim on a lien transfer bond posted in favor of an entity higher in the food chain. I’ll let the surety mavens comment on the merits of your chose in action argument (which, without researching it, appears compelling).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
<image001.jpg>
From: Steve Thompson [mailto:sthompson@thompsonbrookslaw.com]
Sent: Monday, August 12, 2013 1:38 PM
To: Gibbons, Michael; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: RE: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
Michael:
I don't think it is that simple. As you point out the lien transfer bond is a contract running in favor of a specified lienor. That lienor has a statutory chose in action against the surety, assuming it has properly complied with the prerequisites of ch 713 (i.e. has a valid lien). That chose in action can be voluntarily assigned to a third party creditor, or taken by a third party creditor involuntarily through a valid legal proceeding. Choses in action are typically taken involuntarily through proceedings supplementary under Fla. Stat. ch 56, rather than garnishment proceedings, however, to the extent that such an action is deemed a "debt" by the court, then it could be taken by a garnishment proceeding. Regardless of how acquired, a valid argument exists that the third party creditor stands in the shoes of the lienor who originally owned the chose in action and is capable of asserting the claim in the name of that original lienor. As a result, standing is not an impediment nor, in my opinion, must such a creditor have a valid claim of lien in its own right to exercise such a remedy. Of course this comes from the prospective of someone who frequently represents third tier material suppliers, so it could be wishful thinking!
Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824
THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL
AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED
RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION
IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE
AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR;
AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT
BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE
SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER
DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS
WITHOUT THE EXPRESS CONSENT OF THOMPSON & BROOKS. THANK YOU.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
While the language is unfortunate, I don’t think it will have much impact in practice for two reasons. First, the Lien Transfer Bond is a contract running in favor of a specified lienor whose lien has been transferred to the security of the bond. Other persons simply don’t have standing to sue the Surety on the lien transfer bond. Besides the standing issue, in order for lower tiered materialman or sub-subcontractor to have a claim on any lien transfer bond, that materialman or sub-subcontractor must be able to establish that it has a valid and enforceable claim of lien. And if it has a perfected claim of lien, then it will either be foreclosing on the real property or have its very own lien transfer bond as substituted security (with no need to piggyback on some other lienor’s lien transfer bond).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
<image001.jpg>
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman…
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
NOTICE:
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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.
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The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.
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Yes. Thank you very much. Best regards, Lep
From: Joe Garrity [mailto:JGarrity@gwlawfirm.net]
Sent: Wednesday, August 28, 2013 7:35 PM
To: Adams, Lep
Cc: Gibbons, Michael; Steve Thompson; Roberts, Hardy L.; CLC Discussion
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
Is this the case you're looking for?
I have the Opinion and briefs filed in 2nd DCA and Supreme Court at my office if you need them. Let me know.
Clark H. SCHERER, III, Appellant, v. The VILLAS DEL VERDE HOMEOWNERS ASSOCIATION, INC., Appellee.
55 So.3d 602 (2011)
No. 2D09-5547.file:///\\scholar?scidkt=16251645311099661855&as_sdt=2&hl=en
District Court of Appeal of Florida, Second District.
January 19, 2011.
Best regards,
Joseph D. Garrity, Esq.
In an effort to respond timely this email is being sent using voice recognition software please excuse any typos or mis-transcribed language.
This communication is being sent from an attorney at law and may contain sensitive confidential client information. If you are not the intended recipient of this communication you are directed specific to destroy the email and notify the sender immediately. Any misdirected email is not intended to act as a waiver of attorney-client privilege.
On Aug 28, 2013, at 6:52 PM, "AAdams@foley.commailto:AAdams@foley.com" <AAdams@foley.commailto:AAdams@foley.com> wrote:
Does anyone have the cite to the recent case that held a Q. A. cannot be held individually liable for defective work by the Corporate CGC, following Murthy v. N. Sinha. Thanks, Lep
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 1:53 PM
To: 'Steve Thompson'; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
You raise a good point Steve. I was addressing my comment to the Court’s language that appears to have [mis]construed 713.24 to permit lower tiered subs and suppliers, in the ordinary course, to assert a claim on a lien transfer bond posted in favor of an entity higher in the food chain. I’ll let the surety mavens comment on the merits of your chose in action argument (which, without researching it, appears compelling).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
<image001.jpg>
From: Steve Thompson [mailto:sthompson@thompsonbrookslaw.com]
Sent: Monday, August 12, 2013 1:38 PM
To: Gibbons, Michael; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: RE: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
Michael:
I don't think it is that simple. As you point out the lien transfer bond is a contract running in favor of a specified lienor. That lienor has a statutory chose in action against the surety, assuming it has properly complied with the prerequisites of ch 713 (i.e. has a valid lien). That chose in action can be voluntarily assigned to a third party creditor, or taken by a third party creditor involuntarily through a valid legal proceeding. Choses in action are typically taken involuntarily through proceedings supplementary under Fla. Stat. ch 56, rather than garnishment proceedings, however, to the extent that such an action is deemed a "debt" by the court, then it could be taken by a garnishment proceeding. Regardless of how acquired, a valid argument exists that the third party creditor stands in the shoes of the lienor who originally owned the chose in action and is capable of asserting the claim in the name of that original lienor. As a result, standing is not an impediment nor, in my opinion, must such a creditor have a valid claim of lien in its own right to exercise such a remedy. Of course this comes from the prospective of someone who frequently represents third tier material suppliers, so it could be wishful thinking!
Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824
THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL
AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED
RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION
IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE
AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR;
AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT
BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE
SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER
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WITHOUT THE EXPRESS CONSENT OF THOMPSON & BROOKS. THANK YOU.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
While the language is unfortunate, I don’t think it will have much impact in practice for two reasons. First, the Lien Transfer Bond is a contract running in favor of a specified lienor whose lien has been transferred to the security of the bond. Other persons simply don’t have standing to sue the Surety on the lien transfer bond. Besides the standing issue, in order for lower tiered materialman or sub-subcontractor to have a claim on any lien transfer bond, that materialman or sub-subcontractor must be able to establish that it has a valid and enforceable claim of lien. And if it has a perfected claim of lien, then it will either be foreclosing on the real property or have its very own lien transfer bond as substituted security (with no need to piggyback on some other lienor’s lien transfer bond).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
<image001.jpg>
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman…
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, Florida (32789)
P.O. Box 1764
Orlando, Florida 32802
Phone: (407) 843-5353
Fax: (407) 841-9516
e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
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PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.
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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]
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]
The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.
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The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.
Adam, if you haven't already considered it, note potential effect of recently enacted Fla. Stat. §558.0035http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0558/Sections/0558.0035.html (Fla. Laws 2013-28http://laws.flrules.org/2013/28), which appears to codify, and perhaps abrogates (haven't evaluated yet), some of the case law on this issue.
Bryan Capps
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of AAdams@foley.com
Sent: Wednesday, August 28, 2013 6:52 PM
To: 'Gibbons, Michael'; 'Steve Thompson'; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
Does anyone have the cite to the recent case that held a Q. A. cannot be held individually liable for defective work by the Corporate CGC, following Murthy v. N. Sinha. Thanks, Lep
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 1:53 PM
To: 'Steve Thompson'; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
You raise a good point Steve. I was addressing my comment to the Court's language that appears to have [mis]construed 713.24 to permit lower tiered subs and suppliers, in the ordinary course, to assert a claim on a lien transfer bond posted in favor of an entity higher in the food chain. I'll let the surety mavens comment on the merits of your chose in action argument (which, without researching it, appears compelling).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive.
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image001.jpg@01CEA4A0.B48EE7B0]
From: Steve Thompson [mailto:sthompson@thompsonbrookslaw.com]
Sent: Monday, August 12, 2013 1:38 PM
To: Gibbons, Michael; 'Roberts, Hardy L.'; 'CLC Discussion'
Subject: RE: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
Michael:
I don't think it is that simple. As you point out the lien transfer bond is a contract running in favor of a specified lienor. That lienor has a statutory chose in action against the surety, assuming it has properly complied with the prerequisites of ch 713 (i.e. has a valid lien). That chose in action can be voluntarily assigned to a third party creditor, or taken by a third party creditor involuntarily through a valid legal proceeding. Choses in action are typically taken involuntarily through proceedings supplementary under Fla. Stat. ch 56, rather than garnishment proceedings, however, to the extent that such an action is deemed a "debt" by the court, then it could be taken by a garnishment proceeding. Regardless of how acquired, a valid argument exists that the third party creditor stands in the shoes of the lienor who originally owned the chose in action and is capable of asserting the claim in the name of that original lienor. As a result, standing is not an impediment nor, in my opinion, must such a creditor have a valid claim of lien in its own right to exercise such a remedy. Of course this comes from the prospective of someone who frequently represents third tier material suppliers, so it could be wishful thinking!
Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824
THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL
AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED
RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION
IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE
AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR;
AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT
BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE
SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER
DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS
WITHOUT THE EXPRESS CONSENT OF THOMPSON & BROOKS. THANK YOU.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 12, 2013 10:52 AM
To: 'Roberts, Hardy L.'; CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: Re: [CLC-Discussion] 13.24 Third Party Claimants Under Bond?
While the language is unfortunate, I don't think it will have much impact in practice for two reasons. First, the Lien Transfer Bond is a contract running in favor of a specified lienor whose lien has been transferred to the security of the bond. Other persons simply don't have standing to sue the Surety on the lien transfer bond. Besides the standing issue, in order for lower tiered materialman or sub-subcontractor to have a claim on any lien transfer bond, that materialman or sub-subcontractor must be able to establish that it has a valid and enforceable claim of lien. And if it has a perfected claim of lien, then it will either be foreclosing on the real property or have its very own lien transfer bond as substituted security (with no need to piggyback on some other lienor's lien transfer bond).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image001.jpg@01CEA4A0.B48EE7B0]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Saturday, August 10, 2013 2:10 PM
To: CLC Discussion (clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org)
Subject: [CLC-Discussion] FW: 13.24 Third Party Claimants Under Bond?
Please see the request below from Robert Worman...
From: Robert B. Worman [mailto:rbworman@wormanlaw.com]
Sent: Friday, August 09, 2013 10:54 AM
To: Roberts, Hardy L.
Subject: 13.24 Third Party Claimants Under Bond?
Hardy,
Can you circulate this through ListServe for the Construction Law Committee to address?
Please review the attached case which just came out. I would appreciate comments on the dicta at the end of the 2d paragraph as to the theory under which materialman to a lienor would have a claim under the transfer bond.
Anyone want to crawl out on that limb?
Regards,
Robert B. Worman, Esq.
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
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e-mail: rworman@wormanlaw.commailto:rworman@wormanlaw.com
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