Fred, if you look closely at that case, it was the Commissioner's E&O carrier (for operational activities) that was the liable party because the Commissioners were protected by the same sovereign immunity. See Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942 (Fla. 4th DCA 1995).
Since that opinion was published, the legislature made the following changes to section 255.05, specifically in adding section 255.05(9):
(9)    On any public works project for which the public authority requires a performance and payment bond, suits at law and in equity may be brought and maintained by and against the public authority on any contract claim arising from a breach of an express provision or an implied covenant of a written agreement or a written directive issued by the public authority pursuant to the written agreement.  in any such suit, the public authority and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.  Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies.  The provisions of this section shall apply only to contracts entered into on or after July 1, 1999.
See also
St. Augustine v. Brooks, 55 So. 2d 96 (Fla. 1951) (mechanic's lien will not attach to property held and used by a municipality for public purposes).

Just saying.

Kim

Kimberly A. Ashby
Board Certified in Appellate Law and Construction Law
Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando, FL 32801
P.O. Box 231, Orlando, Florida 32802
Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229
kim.ashby@akerman.com

V Cardhttp://www.akerman.com/bios/vcard.asp?id=361 | Biohttp://www.akerman.com/bios/bio.asp?id=361 | akerman.comhttp://www.akerman.com/361

[http://www.akerman.com/akermanlogo4.gif]

CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and 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 transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, we are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

There’s also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Why not enforce your bond remedy?
Note the first sentence of 255.05(1)(a); the recent amendments creating existing language requires private party to obtain bond(s) for work that private party contracts for as improvement to public property or a Public Work .  To understand better the meaning of the amendment, do research on use of “public work”; that wording is not limited to “ public property” or there would be no disjunctive “or”. A very early case used “public work”  as private property of a railroad that would serve the public; that case did not deal with lien or bond, but it illustrates how general “public work” means in current version of statute.  A more interesting issue is defining the remedy for non-compliance against the public body or the private party that failed to obtain bonds. In some past cases the commissioners or council members were liable to person or entity that by law had right to rely upon existence of the required bonds. Who was advising the public body; the private party. Does the license or lease have an indemnity clause in favor of public entity?  Have fun.
JG Thresher
813-229-7744

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Can you send a copy of the Order on your motion for SJ?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of Coral Springs entered into a renewable "Concession Agreement" (i.e., a lease) for a private party to build an ice-skating rink on City property.  Under the Concession Agreement, the concessionaire/lessee actually owned the improvements subject to the City's reversionary interest at the conclusion of the lease.  The concessionaire/lessee didn't pay the contractor and, in fact, sold its interest during construction.  The contractor, our client, recorded a lien against the property, and both the concessionaire/lessee and the purchaser said the property was not lienable.  We moved for and were granted summary judgment in our favor on that issue.  Attached is the motion/brief, which is a matter of public record and may be helpful.  Presumably much of the law has changed/evolved over the past 14 or so years.

Bryan Capps

From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there).  The statutory reason that you can’t lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01.  The definition of real property also excludes governmentally owned property.  This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property.  Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property.  You want to be careful when you prepare the lien to only seek it against the leasehold.  Also a lien on a leasehold is typically only as valuable as the tenant is collectable.

Go get em.

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985

e-mail:  leiby@mkpalaw.commailto:leiby@mkpalaw.com

Board Certified in Construction Law
Fla. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on public land

Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)?  The lessee contracted for the improvements which were required by the lease agreement.  The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: “However, there may be private leasehold interests on governmental property that are lienable.”  I have found no other authority.

Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.commailto:rperez@mcper.com

IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

The case I was referring to is Warren, Governor for Use and Benefit of Hughes Supply Co., Inc. vs. Glens Falls Indemnity Co., 66 So. 2d 54 (Fla. 1953) and 74 So. 2d 888 (Fla. 1954), in which liability was found against the statutory surety bonds of school board members who had failed to require a s. 255 bond.  I used this case in Lee County to effect a $50,000 settlement against five (5) county commissioners each of who had posted the then required statutory $10,000 surety bonds (maybe since repealed?).

P. S. I was a mere child when Warren was Governor and this case was decided! A really old lawyer told me about it!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of kim.ashby@akerman.com
Sent: Monday, February 06, 2012 3:43 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

Fred, if you look closely at that case, it was the Commissioner's E&O carrier (for operational activities) that was the liable party because the Commissioners were protected by the same sovereign immunity. See Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942 (Fla. 4th DCA 1995).
Since that opinion was published, the legislature made the following changes to section 255.05, specifically in adding section 255.05(9):
(9)    On any public works project for which the public authority requires a performance and payment bond, suits at law and in equity may be brought and maintained by and against the public authority on any contract claim arising from a breach of an express provision or an implied covenant of a written agreement or a written directive issued by the public authority pursuant to the written agreement.  in any such suit, the public authority and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.  Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies.  The provisions of this section shall apply only to contracts entered into on or after July 1, 1999.
See also
St. Augustine v. Brooks, 55 So. 2d 96 (Fla. 1951) (mechanic's lien will not attach to property held and used by a municipality for public purposes).

Just saying.

Kim

Kimberly A. Ashby
Board Certified in Appellate Law and Construction Law
Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando, FL 32801
P.O. Box 231, Orlando, Florida 32802
Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229
kim.ashby@akerman.com

V Cardhttp://www.akerman.com/bios/vcard.asp?id=361 | Biohttp://www.akerman.com/bios/bio.asp?id=361 | akerman.comhttp://www.akerman.com/361

[Image removed by sender.]

CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and 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 transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, we are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

There’s also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Why not enforce your bond remedy?
Note the first sentence of 255.05(1)(a); the recent amendments creating existing language requires private party to obtain bond(s) for work that private party contracts for as improvement to public property or a Public Work .  To understand better the meaning of the amendment, do research on use of “public work”; that wording is not limited to “ public property” or there would be no disjunctive “or”. A very early case used “public work”  as private property of a railroad that would serve the public; that case did not deal with lien or bond, but it illustrates how general “public work” means in current version of statute.  A more interesting issue is defining the remedy for non-compliance against the public body or the private party that failed to obtain bonds. In some past cases the commissioners or council members were liable to person or entity that by law had right to rely upon existence of the required bonds. Who was advising the public body; the private party. Does the license or lease have an indemnity clause in favor of public entity?  Have fun.
JG Thresher
813-229-7744

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Can you send a copy of the Order on your motion for SJ?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of Coral Springs entered into a renewable "Concession Agreement" (i.e., a lease) for a private party to build an ice-skating rink on City property.  Under the Concession Agreement, the concessionaire/lessee actually owned the improvements subject to the City's reversionary interest at the conclusion of the lease.  The concessionaire/lessee didn't pay the contractor and, in fact, sold its interest during construction.  The contractor, our client, recorded a lien against the property, and both the concessionaire/lessee and the purchaser said the property was not lienable.  We moved for and were granted summary judgment in our favor on that issue.  Attached is the motion/brief, which is a matter of public record and may be helpful.  Presumably much of the law has changed/evolved over the past 14 or so years.

Bryan Capps

From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there).  The statutory reason that you can’t lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01.  The definition of real property also excludes governmentally owned property.  This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property.  Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property.  You want to be careful when you prepare the lien to only seek it against the leasehold.  Also a lien on a leasehold is typically only as valuable as the tenant is collectable.

Go get em.

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985

e-mail:  leiby@mkpalaw.commailto:leiby@mkpalaw.com

Board Certified in Construction Law
Fla. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on public land

Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)?  The lessee contracted for the improvements which were required by the lease agreement.  The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: “However, there may be private leasehold interests on governmental property that are lienable.”  I have found no other authority.

Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.commailto:rperez@mcper.com

IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

Yes, I know about Glens Falls. (I love that case). I have a dec action pending with a Prime Contract that well exceeds the threshold, but where the individual projects thereunder were less than $200K each (after they deducted the DPO’s-change orders). Hence the “slice and dice” question.

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures

This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 4:07 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

The case I was referring to is Warren, Governor for Use and Benefit of Hughes Supply Co., Inc. vs. Glens Falls Indemnity Co., 66 So. 2d 54 (Fla. 1953) and 74 So. 2d 888 (Fla. 1954), in which liability was found against the statutory surety bonds of school board members who had failed to require a s. 255 bond.  I used this case in Lee County to effect a $50,000 settlement against five (5) county commissioners each of who had posted the then required statutory $10,000 surety bonds (maybe since repealed?).

P. S. I was a mere child when Warren was Governor and this case was decided! A really old lawyer told me about it!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  | View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of kim.ashby@akerman.com
Sent: Monday, February 06, 2012 3:43 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

Fred, if you look closely at that case, it was the Commissioner's E&O carrier (for operational activities) that was the liable party because the Commissioners were protected by the same sovereign immunity. See Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942 (Fla. 4th DCA 1995).

Since that opinion was published, the legislature made the following changes to section 255.05, specifically in adding section 255.05(9):

      (9)     On any public works project for which the public authority requires a performance and payment bond, suits at law and in equity may be brought and maintained by and against the public authority on any contract claim arising from a breach of an express provision or an implied covenant of a written agreement or a written directive issued by the public authority pursuant to the written agreement.  in any such suit, the public authority and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.  Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies.  The provisions of this section shall apply only to contracts entered into on or after July 1, 1999.

See also

St. Augustine v. Brooks, 55 So. 2d 96 (Fla. 1951) (mechanic's lien will not attach to property held and used by a municipality for public purposes).

Just saying.

Kim

Kimberly A. Ashby

Board Certified in Appellate Law and Construction Law

Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando, FL 32801

P.O. Box 231, Orlando, Florida 32802

Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229

kim.ashby@akerman.com

V Card http://www.akerman.com/bios/vcard.asp?id=361  | Bio http://www.akerman.com/bios/bio.asp?id=361  | akerman.com http://www.akerman.com/361

CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and 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 transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, we are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

There’s also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  | View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Why not enforce your bond remedy?

Note the first sentence of 255.05(1)(a); the recent amendments creating existing language requires private party to obtain bond(s) for work that private party contracts for as improvement to public property or a Public Work .  To understand better the meaning of the amendment, do research on use of “public work”; that wording is not limited to “ public property” or there would be no disjunctive “or”. A very early case used “public work”  as private property of a railroad that would serve the public; that case did not deal with lien or bond, but it illustrates how general “public work” means in current version of statute.  A more interesting issue is defining the remedy for non-compliance against the public body or the private party that failed to obtain bonds. In some past cases the commissioners or council members were liable to person or entity that by law had right to rely upon existence of the required bonds. Who was advising the public body; the private party. Does the license or lease have an indemnity clause in favor of public entity?  Have fun.

     JG Thresher

813-229-7744

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Can you send a copy of the Order on your motion for SJ?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  | View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of Coral Springs entered into a renewable "Concession Agreement" (i.e., a lease) for a private party to build an ice-skating rink on City property.  Under the Concession Agreement, the concessionaire/lessee actually owned the improvements subject to the City's reversionary interest at the conclusion of the lease.  The concessionaire/lessee didn't pay the contractor and, in fact, sold its interest during construction.  The contractor, our client, recorded a lien against the property, and both the concessionaire/lessee and the purchaser said the property was not lienable.  We moved for and were granted summary judgment in our favor on that issue.  Attached is the motion/brief, which is a matter of public record and may be helpful.  Presumably much of the law has changed/evolved over the past 14 or so years.

Bryan Capps

From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there).  The statutory reason that you can’t lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01.  The definition of real property also excludes governmentally owned property.  This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property.  Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property.  You want to be careful when you prepare the lien to only seek it against the leasehold.  Also a lien on a leasehold is typically only as valuable as the tenant is collectable.

Go get em.

Larry R. Leiby, Esq.

Malka & Kravitz, P.A.

1300 Sawgrass Corp. Pkwy., Suite 100

Ft. Lauderdale, FL  33323

Phone:  954-514-0984

Fax:      954-514-0985

e-mail:  leiby@mkpalaw.com

Board Certified in Construction Law

Fla. S. Ct. Certified Circuit Court Civil Mediator

Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on public land

Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)?  The lessee contracted for the improvements which were required by the lease agreement.  The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: “However, there may be private leasehold interests on governmental property that are lienable.”  I have found no other authority.

Rafael A. Perez

Board Certified Construction Attorney

McArdle and Perez, P.A.

806 S. Douglas Road, Suite 625

Coral Gables, Florida 33134

305-442-2214

Fax 305-442-2291

rperez@mcper.com

IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

Thank you Greg for the thoughts. The tort route is a long road, but it
may open up to an E & O policy.

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Tuesday, February 07, 2012 9:04 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
on public land

Hmm.  Always viewed language added in 255.05(9) as, more or less, a
codification of Miorelli v Brevard and not so much directed to public
entity liability under Palm Beach v. Trinity, etc.  Seems the S Ct
indirectly recognized as such  in FDEP v. ContractPoint,  986/1260.

Anyway, have had to resort to Palm Beach/Trinity type actions on several
occasions in the recent past, alleging a cause against the public entity
for failure to comply with the "ministerial duties" imposed on it by
statute (to see that a compliant bond is recorded prior to
commencement).  A few times I have brought them in cases where a bond
was apparently obtained by the prime but never recorded (prejudicing the
sub-subs & materialmen in getting notices to the proper parties).  In my
view liability for the surety (and principal if solvent) was pretty
straightforward when Martin Paving "no recording/no reliance on notice
defenses" prevailed (overlooking common law bond rationale).  Now that
liability on the 255.05 Bond count apparently turns on whether the
claimant was "prejudiced" by failure to record (American Home
Assurance), you almost have to add the additional count against the
public entity for failure to see that a compliant bond was recorded
under Palm Beach/Trinity.

When your on that path the attorneys for the entity have started taking
the position the Palm Beach/Trinity type claim is in tort for common law
negligence, with the significance being whether notice requirements and
liability limitations of 768.28 apply, and further, whether comparatives
under 768.81 (Fabre) come in.  Usually they try to point fault at the
claimant,  whatever "noticing" outfit the sub or materialman used to
serve their notices, and any other party that could have taken action to
avert notice failings.  I have even had one where the public entity and
the prime contractor cross-claimed against each other, each claiming
that the other "promised to record the bond".  Very murky process.

Experience suggest to me that much of it could be avoided if there was
provision in 255.05, akin to that in 713.23(1)(b) (imposing liability
against the "owner, contractor or surety" for failing to furnish a copy
of the bond on demand).  I say this, because sub-subs and materialman
almost always get the "owner" right when serving their notices even if
they can't find the bond.  The Notice to Owner/Contractor form
inevitably requests a copy of any bond (713.23/255.05 and 337.18).  I
don't recall once in 28 years having seen a single instance in which any
party that received notice actually furnished a copy of the bond.  Also,
(and as Mr. Leiby adroitly points out in his learned treatise),
searching for bonds in the public record is never easy where there are
no specifications to the clerk for indexing.

GTE

Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law

NOTICE OF CONFIDENTIALITY: This message and its attachments are intended
solely for the use of the addressee. In addition, this message and the
attachments may contain information that is confidential, privileged and
exempt from disclosure under applicable law. If you are not the intended
recipient of this message, you are prohibited from reading, disclosing,
reproducing, distributing, disseminating or otherwise using this
transmission. Delivery of this message to any person other than the
intended recipient is not intended to waive any right or privilege. If
you have received this message in error, please promptly notify the
sender by reply E-mail and immediately delete this message from your
system.

On 2/6/2012 3:42 PM, kim.ashby@akerman.com wrote:

Fred, if you look closely at that case, it was the Commissioner's E&O
carrier (for operational activities) that was the liable party because
the Commissioners were protected by the same sovereign immunity. See
Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942 (Fla. 4th
DCA 1995).

Since that opinion was published, the legislature made the following
changes to section 255.05, specifically in adding section 255.05(9):

      (9)     On any public works project for which the public

authority requires a performance and payment bond, suits at law and in
equity may be brought and maintained by and against the public authority
on any contract claim arising from a breach of an express provision or
an implied covenant of a written agreement or a written directive issued
by the public authority pursuant to the written agreement.  in any such
suit, the public authority and the contractor shall have all of the same
rights and obligations as a private person under a like contract except
that no liability may be based on an oral modification of either the
written contract or written directive.  Nothing herein shall be
construed to waive the sovereign immunity of the state and its political
subdivisions from equitable claims and equitable remedies.  The
provisions of this section shall apply only to contracts entered into on
or after July 1, 1999.

See also

St. Augustine v. Brooks, 55 So. 2d 96 (Fla. 1951) (mechanic's lien will
not attach to property held and used by a municipality for public
purposes).

Just saying.

Kim

Kimberly A. Ashby

Board Certified in Appellate Law and Construction Law

Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando, FL
32801

P.O. Box 231, Orlando, Florida 32802

Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229

kim.ashby@akerman.com

V Card http://www.akerman.com/bios/vcard.asp?id=361  | Bio
http://www.akerman.com/bios/bio.asp?id=361  | akerman.com
http://www.akerman.com/361

CONFIDENTIALITY NOTE: The information contained in this transmission may
be privileged and confidential, and 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 transmission in error, please immediately reply
to the sender that you have received this communication in error and
then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS
regulations, we are required to advise you that, unless expressly stated
otherwise, any U.S. federal tax advice contained in this transmittal, is
not intended or written to be used, and cannot be used, by any person
for the purpose of (i) avoiding penalties under the U.S. Internal
Revenue Code, or (ii) promoting, marketing or recommending to another
party any transaction or matter addressed in this e-mail or attachment.

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

There's also an old case out of north Florida holding county
commissioners PERSONALLY liable for failing to require a 255 bond!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com
http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  |
View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

Why not enforce your bond remedy?

Note the first sentence of 255.05(1)(a); the recent amendments creating
existing language requires private party to obtain bond(s) for work that
private party contracts for as improvement to public property or a
Public Work .  To understand better the meaning of the amendment, do
research on use of "public work"; that wording is not limited to "
public property" or there would be no disjunctive "or". A very early
case used "public work"  as private property of a railroad that would
serve the public; that case did not deal with lien or bond, but it
illustrates how general "public work" means in current version of
statute.  A more interesting issue is defining the remedy for
non-compliance against the public body or the private party that failed
to obtain bonds. In some past cases the commissioners or council members
were liable to person or entity that by law had right to rely upon
existence of the required bonds. Who was advising the public body; the
private party. Does the license or lease have an indemnity clause in
favor of public entity?  Have fun.

     JG Thresher

813-229-7744

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

Can you send a copy of the Order on your motion for SJ?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com
http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  |
View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan
L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of
Coral Springs entered into a renewable "Concession Agreement" (i.e., a
lease) for a private party to build an ice-skating rink on City
property.  Under the Concession Agreement, the concessionaire/lessee
actually owned the improvements subject to the City's reversionary
interest at the conclusion of the lease.  The concessionaire/lessee
didn't pay the contractor and, in fact, sold its interest during
construction.  The contractor, our client, recorded a lien against the
property, and both the concessionaire/lessee and the purchaser said the
property was not lienable.  We moved for and were granted summary
judgment in our favor on that issue.  Attached is the motion/brief,
which is a matter of public record and may be helpful.  Presumably much
of the law has changed/evolved over the past 14 or so years.

Bryan Capps

From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry
Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

The answer is in the definitions in 713.01 (and if you are referring to
8:3 of my book, it is set out there).  The statutory reason that you
can't lien publicly owned property is because a governmental owner is
not within the definition of owner in 713.01.  The definition of real
property also excludes governmentally owned property.  This is intended
to keep governmentally owned property out of the lien law because a
government must usually go through an election to subject public owned
property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and
who enters into a contract for the improvement of the real property.
Thus there is no reason that you cannot have a lien on a private
leasehold interest that sits on public property.  You want to be careful
when you prepare the lien to only seek it against the leasehold.  Also a
lien on a leasehold is typically only as valuable as the tenant is
collectable.

Go get em.

Larry R. Leiby, Esq.

Malka & Kravitz, P.A.

1300 Sawgrass Corp. Pkwy., Suite 100

Ft. Lauderdale, FL  33323

Phone:  954-514-0984

Fax:      954-514-0985

e-mail:  leiby@mkpalaw.com

Board Certified in Construction Law

Fla. S. Ct. Certified Circuit Court Civil Mediator

Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on
public land

Does anyone have any authority for a construction lien on a leasehold
where the lessee is a private party but the lessor is a municipality
(i.e. on public land)?  The lessee contracted for the improvements which
were required by the lease agreement.  The only authority I have found
is Section 8.3 of the Fla. Prac. Construction Law Manual which states in
the first paragraph, in part: "However, there may be private leasehold
interests on governmental property that are lienable."  I have found no
other authority.

Rafael A. Perez

Board Certified Construction Attorney

McArdle and Perez, P.A.

806 S. Douglas Road, Suite 625

Coral Gables, Florida 33134

305-442-2214

Fax 305-442-2291

rperez@mcper.com

IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS
IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS
COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY
HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF
(I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR
(II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY
TAX-RELATED MATTER HEREIN.

NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and
is intended solely for the use of the individual(s) to whom it is
addressed. If you believe you received this e-mail in error, please
notify the sender immediately, delete the e-mail from your computer and
do not copy or disclose it to anyone else. If you are not an existing
client of H&K, do not construe anything in this e-mail to make you a
client unless it contains a specific statement to that effect and do not
disclose anything to H&K in reply that you expect it to hold in
confidence. If you properly received this e-mail as a client, co-counsel
or retained expert of H&K, you should maintain its contents in
confidence in order to preserve the attorney-client or work product
privilege that may be available to protect confidentiality.

constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw

It occurs to me that the local government’s “public records” should shed some light on any attempt to “slice and dice” as you describe it; otherwise, it may be hard to prove.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Monday, February 06, 2012 4:28 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

Yes, I know about Glens Falls. (I love that case). I have a dec action pending with a Prime Contract that well exceeds the threshold, but where the individual projects thereunder were less than $200K each (after they deducted the DPO’s-change orders). Hence the “slice and dice” question.

[Logo]
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida  33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.comhttp://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures

This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 4:07 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

The case I was referring to is Warren, Governor for Use and Benefit of Hughes Supply Co., Inc. vs. Glens Falls Indemnity Co., 66 So. 2d 54 (Fla. 1953) and 74 So. 2d 888 (Fla. 1954), in which liability was found against the statutory surety bonds of school board members who had failed to require a s. 255 bond.  I used this case in Lee County to effect a $50,000 settlement against five (5) county commissioners each of who had posted the then required statutory $10,000 surety bonds (maybe since repealed?).

P. S. I was a mere child when Warren was Governor and this case was decided! A really old lawyer told me about it!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of kim.ashby@akerman.com
Sent: Monday, February 06, 2012 3:43 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

Fred, if you look closely at that case, it was the Commissioner's E&O carrier (for operational activities) that was the liable party because the Commissioners were protected by the same sovereign immunity. See Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942 (Fla. 4th DCA 1995).
Since that opinion was published, the legislature made the following changes to section 255.05, specifically in adding section 255.05(9):
(9)    On any public works project for which the public authority requires a performance and payment bond, suits at law and in equity may be brought and maintained by and against the public authority on any contract claim arising from a breach of an express provision or an implied covenant of a written agreement or a written directive issued by the public authority pursuant to the written agreement.  in any such suit, the public authority and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.  Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies.  The provisions of this section shall apply only to contracts entered into on or after July 1, 1999.
See also
St. Augustine v. Brooks, 55 So. 2d 96 (Fla. 1951) (mechanic's lien will not attach to property held and used by a municipality for public purposes).

Just saying.

Kim

Kimberly A. Ashby
Board Certified in Appellate Law and Construction Law
Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando, FL 32801
P.O. Box 231, Orlando, Florida 32802
Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229
kim.ashby@akerman.com

V Cardhttp://www.akerman.com/bios/vcard.asp?id=361 | Biohttp://www.akerman.com/bios/bio.asp?id=361 | akerman.comhttp://www.akerman.com/361

[Image removed by sender.]

CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and 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 transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, we are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

There’s also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Why not enforce your bond remedy?
Note the first sentence of 255.05(1)(a); the recent amendments creating existing language requires private party to obtain bond(s) for work that private party contracts for as improvement to public property or a Public Work .  To understand better the meaning of the amendment, do research on use of “public work”; that wording is not limited to “ public property” or there would be no disjunctive “or”. A very early case used “public work”  as private property of a railroad that would serve the public; that case did not deal with lien or bond, but it illustrates how general “public work” means in current version of statute.  A more interesting issue is defining the remedy for non-compliance against the public body or the private party that failed to obtain bonds. In some past cases the commissioners or council members were liable to person or entity that by law had right to rely upon existence of the required bonds. Who was advising the public body; the private party. Does the license or lease have an indemnity clause in favor of public entity?  Have fun.
JG Thresher
813-229-7744

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Can you send a copy of the Order on your motion for SJ?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of Coral Springs entered into a renewable "Concession Agreement" (i.e., a lease) for a private party to build an ice-skating rink on City property.  Under the Concession Agreement, the concessionaire/lessee actually owned the improvements subject to the City's reversionary interest at the conclusion of the lease.  The concessionaire/lessee didn't pay the contractor and, in fact, sold its interest during construction.  The contractor, our client, recorded a lien against the property, and both the concessionaire/lessee and the purchaser said the property was not lienable.  We moved for and were granted summary judgment in our favor on that issue.  Attached is the motion/brief, which is a matter of public record and may be helpful.  Presumably much of the law has changed/evolved over the past 14 or so years.

Bryan Capps

From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there).  The statutory reason that you can’t lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01.  The definition of real property also excludes governmentally owned property.  This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property.  Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property.  You want to be careful when you prepare the lien to only seek it against the leasehold.  Also a lien on a leasehold is typically only as valuable as the tenant is collectable.

Go get em.

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985

e-mail:  leiby@mkpalaw.commailto:leiby@mkpalaw.com

Board Certified in Construction Law
Fla. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on public land

Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)?  The lessee contracted for the improvements which were required by the lease agreement.  The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: “However, there may be private leasehold interests on governmental property that are lienable.”  I have found no other authority.

Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.commailto:rperez@mcper.com

IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

It’s like searching for a needle in a haystack.  At this point, the Court will have to decide whether the bond threshold is based upon the contract as a whole, or the individual projects thereunder. There doesn’t seem to be any law on this specific issue.

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures

This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Tuesday, February 07, 2012 11:37 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leaseholdon public land

It occurs to me that the local government’s “public records” should shed some light on any attempt to “slice and dice” as you describe it; otherwise, it may be hard to prove.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  | View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Monday, February 06, 2012 4:28 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

Yes, I know about Glens Falls. (I love that case). I have a dec action pending with a Prime Contract that well exceeds the threshold, but where the individual projects thereunder were less than $200K each (after they deducted the DPO’s-change orders). Hence the “slice and dice” question.

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures

This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 4:07 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

The case I was referring to is Warren, Governor for Use and Benefit of Hughes Supply Co., Inc. vs. Glens Falls Indemnity Co., 66 So. 2d 54 (Fla. 1953) and 74 So. 2d 888 (Fla. 1954), in which liability was found against the statutory surety bonds of school board members who had failed to require a s. 255 bond.  I used this case in Lee County to effect a $50,000 settlement against five (5) county commissioners each of who had posted the then required statutory $10,000 surety bonds (maybe since repealed?).

P. S. I was a mere child when Warren was Governor and this case was decided! A really old lawyer told me about it!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  | View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of kim.ashby@akerman.com
Sent: Monday, February 06, 2012 3:43 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

Fred, if you look closely at that case, it was the Commissioner's E&O carrier (for operational activities) that was the liable party because the Commissioners were protected by the same sovereign immunity. See Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942 (Fla. 4th DCA 1995).

Since that opinion was published, the legislature made the following changes to section 255.05, specifically in adding section 255.05(9):

      (9)     On any public works project for which the public authority requires a performance and payment bond, suits at law and in equity may be brought and maintained by and against the public authority on any contract claim arising from a breach of an express provision or an implied covenant of a written agreement or a written directive issued by the public authority pursuant to the written agreement.  in any such suit, the public authority and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.  Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies.  The provisions of this section shall apply only to contracts entered into on or after July 1, 1999.

See also

St. Augustine v. Brooks, 55 So. 2d 96 (Fla. 1951) (mechanic's lien will not attach to property held and used by a municipality for public purposes).

Just saying.

Kim

Kimberly A. Ashby

Board Certified in Appellate Law and Construction Law

Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando, FL 32801

P.O. Box 231, Orlando, Florida 32802

Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229

kim.ashby@akerman.com

V Card http://www.akerman.com/bios/vcard.asp?id=361  | Bio http://www.akerman.com/bios/bio.asp?id=361  | akerman.com http://www.akerman.com/361

CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and 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 transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, we are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

There’s also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  | View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Why not enforce your bond remedy?

Note the first sentence of 255.05(1)(a); the recent amendments creating existing language requires private party to obtain bond(s) for work that private party contracts for as improvement to public property or a Public Work .  To understand better the meaning of the amendment, do research on use of “public work”; that wording is not limited to “ public property” or there would be no disjunctive “or”. A very early case used “public work”  as private property of a railroad that would serve the public; that case did not deal with lien or bond, but it illustrates how general “public work” means in current version of statute.  A more interesting issue is defining the remedy for non-compliance against the public body or the private party that failed to obtain bonds. In some past cases the commissioners or council members were liable to person or entity that by law had right to rely upon existence of the required bonds. Who was advising the public body; the private party. Does the license or lease have an indemnity clause in favor of public entity?  Have fun.

     JG Thresher

813-229-7744

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Can you send a copy of the Order on your motion for SJ?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  | View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of Coral Springs entered into a renewable "Concession Agreement" (i.e., a lease) for a private party to build an ice-skating rink on City property.  Under the Concession Agreement, the concessionaire/lessee actually owned the improvements subject to the City's reversionary interest at the conclusion of the lease.  The concessionaire/lessee didn't pay the contractor and, in fact, sold its interest during construction.  The contractor, our client, recorded a lien against the property, and both the concessionaire/lessee and the purchaser said the property was not lienable.  We moved for and were granted summary judgment in our favor on that issue.  Attached is the motion/brief, which is a matter of public record and may be helpful.  Presumably much of the law has changed/evolved over the past 14 or so years.

Bryan Capps

From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there).  The statutory reason that you can’t lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01.  The definition of real property also excludes governmentally owned property.  This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property.  Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property.  You want to be careful when you prepare the lien to only seek it against the leasehold.  Also a lien on a leasehold is typically only as valuable as the tenant is collectable.

Go get em.

Larry R. Leiby, Esq.

Malka & Kravitz, P.A.

1300 Sawgrass Corp. Pkwy., Suite 100

Ft. Lauderdale, FL  33323

Phone:  954-514-0984

Fax:      954-514-0985

e-mail:  leiby@mkpalaw.com

Board Certified in Construction Law

Fla. S. Ct. Certified Circuit Court Civil Mediator

Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on public land

Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)?  The lessee contracted for the improvements which were required by the lease agreement.  The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: “However, there may be private leasehold interests on governmental property that are lienable.”  I have found no other authority.

Rafael A. Perez

Board Certified Construction Attorney

McArdle and Perez, P.A.

806 S. Douglas Road, Suite 625

Coral Gables, Florida 33134

305-442-2214

Fax 305-442-2291

rperez@mcper.com

IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

No apologies, since there does not appear to be anything on point, the
language in Mayes may at least be persuasive. Thank you MUCHO.

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Tuesday, February 07, 2012 1:08 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
on public land

My apologies Tracye. . .  I had not actually looked at the string, my
interest was just piqued by Ms. Ashby's discussion.  Particular to your
question, I suspect you have already made your way through the cases
dealing with "bid splitting" and "piggybacking" in an effort by by the
public procuring agent to avoid putting a job out to competitive
bidding, i.e., Mayes v Flowers, 154/859.  Doesn't get you there, but
maybe a foot in the door.

G. Elliott

Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law

NOTICE OF CONFIDENTIALITY: This message and its attachments are intended
solely for the use of the addressee. In addition, this message and the
attachments may contain information that is confidential, privileged and
exempt from disclosure under applicable law. If you are not the intended
recipient of this message, you are prohibited from reading, disclosing,
reproducing, distributing, disseminating or otherwise using this
transmission. Delivery of this message to any person other than the
intended recipient is not intended to waive any right or privilege. If
you have received this message in error, please promptly notify the
sender by reply E-mail and immediately delete this message from your
system.

On 2/7/2012 10:10 AM, Tracye wrote:

Thank you Greg for the thoughts. The tort route is a long road, but it
may open up to an E & O policy.

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Tuesday, February 07, 2012 9:04 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
on public land

Hmm.  Always viewed language added in 255.05(9) as, more or less, a
codification of Miorelli v Brevard and not so much directed to public
entity liability under Palm Beach v. Trinity, etc.  Seems the S Ct
indirectly recognized as such  in FDEP v. ContractPoint,  986/1260.

Anyway, have had to resort to Palm Beach/Trinity type actions on several
occasions in the recent past, alleging a cause against the public entity
for failure to comply with the "ministerial duties" imposed on it by
statute (to see that a compliant bond is recorded prior to
commencement).  A few times I have brought them in cases where a bond
was apparently obtained by the prime but never recorded (prejudicing the
sub-subs & materialmen in getting notices to the proper parties).  In my
view liability for the surety (and principal if solvent) was pretty
straightforward when Martin Paving "no recording/no reliance on notice
defenses" prevailed (overlooking common law bond rationale).  Now that
liability on the 255.05 Bond count apparently turns on whether the
claimant was "prejudiced" by failure to record (American Home
Assurance), you almost have to add the additional count against the
public entity for failure to see that a compliant bond was recorded
under Palm Beach/Trinity.

When your on that path the attorneys for the entity have started taking
the position the Palm Beach/Trinity type claim is in tort for common law
negligence, with the significance being whether notice requirements and
liability limitations of 768.28 apply, and further, whether comparatives
under 768.81 (Fabre) come in.  Usually they try to point fault at the
claimant,  whatever "noticing" outfit the sub or materialman used to
serve their notices, and any other party that could have taken action to
avert notice failings.  I have even had one where the public entity and
the prime contractor cross-claimed against each other, each claiming
that the other "promised to record the bond".  Very murky process.

Experience suggest to me that much of it could be avoided if there was
provision in 255.05, akin to that in 713.23(1)(b) (imposing liability
against the "owner, contractor or surety" for failing to furnish a copy
of the bond on demand).  I say this, because sub-subs and materialman
almost always get the "owner" right when serving their notices even if
they can't find the bond.  The Notice to Owner/Contractor form
inevitably requests a copy of any bond (713.23/255.05 and 337.18).  I
don't recall once in 28 years having seen a single instance in which any
party that received notice actually furnished a copy of the bond.  Also,
(and as Mr. Leiby adroitly points out in his learned treatise),
searching for bonds in the public record is never easy where there are
no specifications to the clerk for indexing.

GTE

Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law

NOTICE OF CONFIDENTIALITY: This message and its attachments are intended
solely for the use of the addressee. In addition, this message and the
attachments may contain information that is confidential, privileged and
exempt from disclosure under applicable law. If you are not the intended
recipient of this message, you are prohibited from reading, disclosing,
reproducing, distributing, disseminating or otherwise using this
transmission. Delivery of this message to any person other than the
intended recipient is not intended to waive any right or privilege. If
you have received this message in error, please promptly notify the
sender by reply E-mail and immediately delete this message from your
system.

On 2/6/2012 3:42 PM, kim.ashby@akerman.com wrote:

Fred, if you look closely at that case, it was the Commissioner's E&O
carrier (for operational activities) that was the liable party because
the Commissioners were protected by the same sovereign immunity. See
Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942 (Fla. 4th
DCA 1995).

Since that opinion was published, the legislature made the following
changes to section 255.05, specifically in adding section 255.05(9):

      (9)     On any public works project for which the public

authority requires a performance and payment bond, suits at law and in
equity may be brought and maintained by and against the public authority
on any contract claim arising from a breach of an express provision or
an implied covenant of a written agreement or a written directive issued
by the public authority pursuant to the written agreement.  in any such
suit, the public authority and the contractor shall have all of the same
rights and obligations as a private person under a like contract except
that no liability may be based on an oral modification of either the
written contract or written directive.  Nothing herein shall be
construed to waive the sovereign immunity of the state and its political
subdivisions from equitable claims and equitable remedies.  The
provisions of this section shall apply only to contracts entered into on
or after July 1, 1999.

See also

St. Augustine v. Brooks, 55 So. 2d 96 (Fla. 1951) (mechanic's lien will
not attach to property held and used by a municipality for public
purposes).

Just saying.

Kim

Kimberly A. Ashby

Board Certified in Appellate Law and Construction Law

Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando, FL
32801

P.O. Box 231, Orlando, Florida 32802

Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229

kim.ashby@akerman.com

V Card http://www.akerman.com/bios/vcard.asp?id=361  | Bio
http://www.akerman.com/bios/bio.asp?id=361  | akerman.com
http://www.akerman.com/361

CONFIDENTIALITY NOTE: The information contained in this transmission may
be privileged and confidential, and 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 transmission in error, please immediately reply
to the sender that you have received this communication in error and
then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS
regulations, we are required to advise you that, unless expressly stated
otherwise, any U.S. federal tax advice contained in this transmittal, is
not intended or written to be used, and cannot be used, by any person
for the purpose of (i) avoiding penalties under the U.S. Internal
Revenue Code, or (ii) promoting, marketing or recommending to another
party any transaction or matter addressed in this e-mail or attachment.

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

There's also an old case out of north Florida holding county
commissioners PERSONALLY liable for failing to require a 255 bond!

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com
http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  |
View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

Why not enforce your bond remedy?

Note the first sentence of 255.05(1)(a); the recent amendments creating
existing language requires private party to obtain bond(s) for work that
private party contracts for as improvement to public property or a
Public Work .  To understand better the meaning of the amendment, do
research on use of "public work"; that wording is not limited to "
public property" or there would be no disjunctive "or". A very early
case used "public work"  as private property of a railroad that would
serve the public; that case did not deal with lien or bond, but it
illustrates how general "public work" means in current version of
statute.  A more interesting issue is defining the remedy for
non-compliance against the public body or the private party that failed
to obtain bonds. In some past cases the commissioners or council members
were liable to person or entity that by law had right to rely upon
existence of the required bonds. Who was advising the public body; the
private party. Does the license or lease have an indemnity clause in
favor of public entity?  Have fun.

     JG Thresher

813-229-7744

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

Can you send a copy of the Order on your motion for SJ?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com  | www.hklaw.com
http://www.hklaw.com/

Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley  |
View professional biography http://www.hklaw.com/id77/biosfrdudley

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan
L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of
Coral Springs entered into a renewable "Concession Agreement" (i.e., a
lease) for a private party to build an ice-skating rink on City
property.  Under the Concession Agreement, the concessionaire/lessee
actually owned the improvements subject to the City's reversionary
interest at the conclusion of the lease.  The concessionaire/lessee
didn't pay the contractor and, in fact, sold its interest during
construction.  The contractor, our client, recorded a lien against the
property, and both the concessionaire/lessee and the purchaser said the
property was not lienable.  We moved for and were granted summary
judgment in our favor on that issue.  Attached is the motion/brief,
which is a matter of public record and may be helpful.  Presumably much
of the law has changed/evolved over the past 14 or so years.

Bryan Capps

From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry
Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

The answer is in the definitions in 713.01 (and if you are referring to
8:3 of my book, it is set out there).  The statutory reason that you
can't lien publicly owned property is because a governmental owner is
not within the definition of owner in 713.01.  The definition of real
property also excludes governmentally owned property.  This is intended
to keep governmentally owned property out of the lien law because a
government must usually go through an election to subject public owned
property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and
who enters into a contract for the improvement of the real property.
Thus there is no reason that you cannot have a lien on a private
leasehold interest that sits on public property.  You want to be careful
when you prepare the lien to only seek it against the leasehold.  Also a
lien on a leasehold is typically only as valuable as the tenant is
collectable.

Go get em.

Larry R. Leiby, Esq.

Malka & Kravitz, P.A.

1300 Sawgrass Corp. Pkwy., Suite 100

Ft. Lauderdale, FL  33323

Phone:  954-514-0984

Fax:      954-514-0985

e-mail:  leiby@mkpalaw.com

Board Certified in Construction Law

Fla. S. Ct. Certified Circuit Court Civil Mediator

Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on
public land

Does anyone have any authority for a construction lien on a leasehold
where the lessee is a private party but the lessor is a municipality
(i.e. on public land)?  The lessee contracted for the improvements which
were required by the lease agreement.  The only authority I have found
is Section 8.3 of the Fla. Prac. Construction Law Manual which states in
the first paragraph, in part: "However, there may be private leasehold
interests on governmental property that are lienable."  I have found no
other authority.

Rafael A. Perez

Board Certified Construction Attorney

McArdle and Perez, P.A.

806 S. Douglas Road, Suite 625

Coral Gables, Florida 33134

305-442-2214

Fax 305-442-2291

rperez@mcper.com

IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS
IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS
COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY
HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF
(I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR
(II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY
TAX-RELATED MATTER HEREIN.

NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and
is intended solely for the use of the individual(s) to whom it is
addressed. If you believe you received this e-mail in error, please
notify the sender immediately, delete the e-mail from your computer and
do not copy or disclose it to anyone else. If you are not an existing
client of H&K, do not construe anything in this e-mail to make you a
client unless it contains a specific statement to that effect and do not
disclose anything to H&K in reply that you expect it to hold in
confidence. If you properly received this e-mail as a client, co-counsel
or retained expert of H&K, you should maintain its contents in
confidence in order to preserve the attorney-client or work product
privilege that may be available to protect confidentiality.

constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw

constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw