Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor's failure to pay a lower tier lienor?

And..... before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

[cid:image001.jpg@01D6AD29.9446A350]
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
231 N. Woodland Blvd.
DeLand, FL 32720
(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

Websitehttp://www.cobbcole.com/ | Biohttp://www.cobbcole.com/The-Cobb-Cole-Team/Robert-E-Doan.shtml | vCardhttp://www.cobbcole.com/content/includes/vCards/Robert-E-Doan.vcf

I agree Robert. However, while we are on the subject, couldn't a similar end be achieved by the Legislature creating a private civil cause of action under 713.345 which currently creates criminal liability for a contractor who misapplies construction funds?  Over the past few years, I have had instances on behalf of both Owner clients and subcontractor clients where a private cause of action under 713.345 for a statutory violation would have been most useful.  When a contractor receives funds from an owner and doesn't pay subs and suppliers (with no good faith performance related basis to withhold payment), then both the owner and sub will be hurt.  It would be beneficial to see more civil teeth in the legislation.  I have gone the route of getting local law enforcement involved under 713.345 but it is a long and arduous process and very dependent on the quality and interest level of the agency having jurisdiction.

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
Emailmailto:Michael.Gibbons@lowndes-law.com | Websitehttp://lowndes-law.com | Bio<lowndes-law.com/people/Michael-Gibbons> | VCardhttps://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64

[cid:image001.png@01D6AD2C.9638CF00]
LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 12:55 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 713.346: Time to let Owners in on the party?

CAUTION: THIS IS AN EXTERNAL EMAIL

Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor's failure to pay a lower tier lienor?

And..... before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

[cid:image004.jpg@01D6AD2C.40AC2C80]
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
231 N. Woodland Blvd.
DeLand, FL 32720
(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

Websitehttps://protect-us.mimecast.com/s/lvvKCW6jPlh5ymqzF6rI2n/ | Biohttp://www.cobbcole.com/The-Cobb-Cole-Team/Robert-E-Doan.shtml | vCardhttp://www.cobbcole.com/content/includes/vCards/Robert-E-Doan.vcf

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

It would be great to be able to plead the permissive inference in Fla. Stat. § 713.345(1)(c) and not try to “shoehorn” it into a cause of action. Can’t be the basis for a civil theft claim.

Thank you,

Jack

Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave

Longwood, FL 32750
Telephone: 407-926-4100

mailto:gtwlaw@ymail.com Jack@WCLfirm.com

http://www.wclfirm.com/ www.WCLFirm.com

In some circumstances this firm may be deemed a “debt collector” as defined by the Fair Debt Collection Practices Act and other applicable law. In such a case, this is an attempt to collect a debt. Any communication obtained may be used for that purpose.

Important – Williams Law Firm utilizes spam and junk email filtration applications in its email information systems. These systems may prevent or delay delivery of certain email communications. If you do not receive a response to an email communication within two business days, please contact the intended recipient via phone.

This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information.  If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited.  If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments.  Thank you.

Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service.  If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 1:31 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I agree with both of you but think  713.346  would be the better place to make the change.

https://docs.google.com/uc?export=download&id=1KalMQW05id6VH9XGGOU4m_4qGNKHkGKe&revid=0B5E1kpjo603nd2NmVXNnalQva01PMkZuZnp1RkFJcmpRZ1M4PQ

Edward J. Kinberg

Attorney | Stewart Law CS, LLC.

p: 321-541-6845 a: 7341 Office Park Place, Suite 202, Melbourne, FL 32940

w:  https://stewartlawcs.com/ StewartLawCS.com

CONFIDENTIALITY NOTICE: Do not read this e-mail if you are not the intended recipient. This message and all attachments are confidential and may be protected by the attorney-client and other privileges. Any review, use, dissemination, forwarding, printing, copying, disclosure or distribution by persons other than the intended recipients is prohibited and may be unlawful. You must delete this message and any copy of it (in any form) without disclosing it if you believe this message has been sent to you in error. If you have received this transmission in error, please immediately notify us by reply e-mail, by forwarding this to  mailto:desirestewart@stewartlawcs.com desirestewart@stewartlawcs.com or by telephone at (321)541-6845.

On Wed, Oct 28, 2020 at 1:27 PM RPPTL CLC-Discussion <clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org > wrote:

I agree Robert. However, while we are on the subject, couldn’t a similar end be achieved by the Legislature creating a private civil cause of action under 713.345 which currently creates criminal liability for a contractor who misapplies construction funds?  Over the past few years, I have had instances on behalf of both Owner clients and subcontractor clients where a private cause of action under 713.345 for a statutory violation would have been most useful.  When a contractor receives funds from an owner and doesn’t pay subs and suppliers (with no good faith performance related basis to withhold payment), then both the owner and sub will be hurt.  It would be beneficial to see more civil teeth in the legislation.  I have gone the route of getting local law enforcement involved under 713.345 but it is a long and arduous process and very dependent on the quality and interest level of the agency having jurisdiction.

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
mailto:Michael.Gibbons@lowndes-law.com Email |  http://lowndes-law.com Website |  http://lowndes-law.com/people/Michael-Gibbons Bio |  https://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64 VCard

LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org  <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org > On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 12:55 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 713.346: Time to let Owners in on the party?

CAUTION: THIS IS AN EXTERNAL EMAIL

Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor’s failure to pay a lower tier lienor?

And….. before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

Robert E. Doan

Board Certified Construction Attorney

Supreme Court Certified Circuit Civil Mediator

231 N. Woodland Blvd.

DeLand, FL 32720

(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

Website https://protect-us.mimecast.com/s/lvvKCW6jPlh5ymqzF6rI2n/  | Bio http://www.cobbcole.com/The-Cobb-Cole-Team/Robert-E-Doan.shtml  | vCard http://www.cobbcole.com/content/includes/vCards/Robert-E-Doan.vcf

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

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

[v4.30]

CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.org mailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion

I recently encountered this- the bad actor admitted they had been paid and did not pay my client -  I was shocked at the lack of causes of action to chase the money – yes , it’s a crime , but that does not really get the money back

Kevin J. Taylor, Esq.
Kevin J. Taylor, P.A.
2455 East Sunrise Boulevard
Suite 512
Fort Lauderdale, Florida 33304
954-530-0889

[cid:image004.png@01D6AD35.359E7F60][cid:image005.png@01D6AD35.359E7F60]

www.kevintaylorlaw.comhttp://www.kevintaylorlaw.com/

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:04 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

It would be great to be able to plead the permissive inference in Fla. Stat. § 713.345(1)(c) and not try to “shoehorn” it into a cause of action. Can’t be the basis for a civil theft claim.

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave
Longwood, FL 32750
Telephone: 407-926-4100

Jack@WCLfirm.commailto:gtwlaw@ymail.com
www.WCLFirm.comhttp://www.wclfirm.com/
[cid:image006.jpg@01D6AD35.359E7F60]

In some circumstances this firm may be deemed a “debt collector” as defined by the Fair Debt Collection Practices Act and other applicable law. In such a case, this is an attempt to collect a debt. Any communication obtained may be used for that purpose.

Important – Williams Law Firm utilizes spam and junk email filtration applications in its email information systems. These systems may prevent or delay delivery of certain email communications. If you do not receive a response to an email communication within two business days, please contact the intended recipient via phone.
This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information.  If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited.  If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments.  Thank you.
Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service.  If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 1:31 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I agree with both of you but think  713.346  would be the better place to make the change.

[https://docs.google.com/uc?export=download&id=1KalMQW05id6VH9XGGOU4m_4qGNKHkGKe&revid=0B5E1kpjo603nd2NmVXNnalQva01PMkZuZnp1RkFJcmpRZ1M4PQ]
Edward J. Kinberg
Attorney | Stewart Law CS, LLC.

p: 321-541-6845 a: 7341 Office Park Place, Suite 202, Melbourne, FL 32940
w: StewartLawCS.comhttps://stewartlawcs.com/

CONFIDENTIALITY NOTICE: Do not read this e-mail if you are not the intended recipient. This message and all attachments are confidential and may be protected by the attorney-client and other privileges. Any review, use, dissemination, forwarding, printing, copying, disclosure or distribution by persons other than the intended recipients is prohibited and may be unlawful. You must delete this message and any copy of it (in any form) without disclosing it if you believe this message has been sent to you in error. If you have received this transmission in error, please immediately notify us by reply e-mail, by forwarding this to desirestewart@stewartlawcs.commailto:desirestewart@stewartlawcs.com or by telephone at (321)541-6845.

On Wed, Oct 28, 2020 at 1:27 PM RPPTL CLC-Discussion <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org> wrote:

I agree Robert. However, while we are on the subject, couldn’t a similar end be achieved by the Legislature creating a private civil cause of action under 713.345 which currently creates criminal liability for a contractor who misapplies construction funds?  Over the past few years, I have had instances on behalf of both Owner clients and subcontractor clients where a private cause of action under 713.345 for a statutory violation would have been most useful.  When a contractor receives funds from an owner and doesn’t pay subs and suppliers (with no good faith performance related basis to withhold payment), then both the owner and sub will be hurt.  It would be beneficial to see more civil teeth in the legislation.  I have gone the route of getting local law enforcement involved under 713.345 but it is a long and arduous process and very dependent on the quality and interest level of the agency having jurisdiction.

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
Emailmailto:Michael.Gibbons@lowndes-law.com | Websitehttp://lowndes-law.com | Biohttp://lowndes-law.com/people/Michael-Gibbons | VCardhttps://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64

[cid:image007.png@01D6AD35.359E7F60]
LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 12:55 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 713.346: Time to let Owners in on the party?

CAUTION: THIS IS AN EXTERNAL EMAIL

Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor’s failure to pay a lower tier lienor?

And….. before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

[cid:image008.jpg@01D6AD35.359E7F60]
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
231 N. Woodland Blvd.
DeLand, FL 32720
(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

Websitehttps://protect-us.mimecast.com/s/lvvKCW6jPlh5ymqzF6rI2n/ | Biohttp://www.cobbcole.com/The-Cobb-Cole-Team/Robert-E-Doan.shtml | vCardhttp://www.cobbcole.com/content/includes/vCards/Robert-E-Doan.vcf

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

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

[v4.30]

CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion

Presently my take away from this scenario is that when drafting a contract on behalf of an owner you should always include a specific payment indemnity with lots of scary seeming remedies.

Sincerely,

Peter B. Rowell
Board Certified Construction Attorney
The Law Office of Peter B. Rowell, P.A.
8950 S.W. 74th Court Suite 2201 A-71
Miami, Florida 33156
Phone: (305) 998-9657
[http://kristinlowedesign.com/wp/wp-content/uploads/2018/01/PeterRowellLogo.jpg]
This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately cease reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited.

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:19 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I recently encountered this- the bad actor admitted they had been paid and did not pay my client -  I was shocked at the lack of causes of action to chase the money – yes , it’s a crime , but that does not really get the money back

Kevin J. Taylor, Esq.
Kevin J. Taylor, P.A.
2455 East Sunrise Boulevard
Suite 512
Fort Lauderdale, Florida 33304
954-530-0889

[cid:image002.png@01D6AD39.898B09A0][cid:image003.png@01D6AD39.898B09A0]

www.kevintaylorlaw.comhttp://www.kevintaylorlaw.com/

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:04 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

It would be great to be able to plead the permissive inference in Fla. Stat. § 713.345(1)(c) and not try to “shoehorn” it into a cause of action. Can’t be the basis for a civil theft claim.

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave
Longwood, FL 32750
Telephone: 407-926-4100

Jack@WCLfirm.commailto:gtwlaw@ymail.com
www.WCLFirm.comhttp://www.wclfirm.com/
[cid:image004.jpg@01D6AD39.898B09A0]

In some circumstances this firm may be deemed a “debt collector” as defined by the Fair Debt Collection Practices Act and other applicable law. In such a case, this is an attempt to collect a debt. Any communication obtained may be used for that purpose.

Important – Williams Law Firm utilizes spam and junk email filtration applications in its email information systems. These systems may prevent or delay delivery of certain email communications. If you do not receive a response to an email communication within two business days, please contact the intended recipient via phone.
This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information.  If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited.  If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments.  Thank you.
Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service.  If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 1:31 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I agree with both of you but think  713.346  would be the better place to make the change.

[https://docs.google.com/uc?export=download&id=1KalMQW05id6VH9XGGOU4m_4qGNKHkGKe&revid=0B5E1kpjo603nd2NmVXNnalQva01PMkZuZnp1RkFJcmpRZ1M4PQ]
Edward J. Kinberg
Attorney | Stewart Law CS, LLC.

p: 321-541-6845 a: 7341 Office Park Place, Suite 202, Melbourne, FL 32940
w: StewartLawCS.comhttps://stewartlawcs.com/

CONFIDENTIALITY NOTICE: Do not read this e-mail if you are not the intended recipient. This message and all attachments are confidential and may be protected by the attorney-client and other privileges. Any review, use, dissemination, forwarding, printing, copying, disclosure or distribution by persons other than the intended recipients is prohibited and may be unlawful. You must delete this message and any copy of it (in any form) without disclosing it if you believe this message has been sent to you in error. If you have received this transmission in error, please immediately notify us by reply e-mail, by forwarding this to desirestewart@stewartlawcs.commailto:desirestewart@stewartlawcs.com or by telephone at (321)541-6845.

On Wed, Oct 28, 2020 at 1:27 PM RPPTL CLC-Discussion <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org> wrote:

I agree Robert. However, while we are on the subject, couldn’t a similar end be achieved by the Legislature creating a private civil cause of action under 713.345 which currently creates criminal liability for a contractor who misapplies construction funds?  Over the past few years, I have had instances on behalf of both Owner clients and subcontractor clients where a private cause of action under 713.345 for a statutory violation would have been most useful.  When a contractor receives funds from an owner and doesn’t pay subs and suppliers (with no good faith performance related basis to withhold payment), then both the owner and sub will be hurt.  It would be beneficial to see more civil teeth in the legislation.  I have gone the route of getting local law enforcement involved under 713.345 but it is a long and arduous process and very dependent on the quality and interest level of the agency having jurisdiction.

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
Emailmailto:Michael.Gibbons@lowndes-law.com | Websitehttp://lowndes-law.com | Biohttp://lowndes-law.com/people/Michael-Gibbons | VCardhttps://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64

[cid:image005.png@01D6AD39.898B09A0]
LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 12:55 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 713.346: Time to let Owners in on the party?

CAUTION: THIS IS AN EXTERNAL EMAIL

Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor’s failure to pay a lower tier lienor?

And….. before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

[cid:image006.jpg@01D6AD39.898B09A0]
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
231 N. Woodland Blvd.
DeLand, FL 32720
(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

Websitehttps://protect-us.mimecast.com/s/lvvKCW6jPlh5ymqzF6rI2n/ | Biohttp://www.cobbcole.com/The-Cobb-Cole-Team/Robert-E-Doan.shtml | vCardhttp://www.cobbcole.com/content/includes/vCards/Robert-E-Doan.vcf

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You only include the “scary seeming remedies”  (whatever those are) when the contract is drafted within a week of Halloween.  😊

Larry R. Leiby

Larry R. Leiby, Esq.

Adjunct Professor, Florida International University College of Law

Florida Bar Board Certified Construction Law Expert

Emeritus Fellow, American College of Commercial Arbitrators

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:50 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

Presently my take away from this scenario is that when drafting a contract on behalf of an owner you should always include a specific payment indemnity with lots of scary seeming remedies.

Sincerely,

Peter B. Rowell

Board Certified Construction Attorney

The Law Office of Peter B. Rowell, P.A.

8950 S.W. 74th Court Suite 2201 A-71

Miami, Florida 33156

Phone: (305) 998-9657

This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately cease reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org  <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org > On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:19 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I recently encountered this- the bad actor admitted they had been paid and did not pay my client -  I was shocked at the lack of causes of action to chase the money – yes , it’s a crime , but that does not really get the money back

Kevin J. Taylor, Esq.

Kevin J. Taylor, P.A.

2455 East Sunrise Boulevard

Suite 512

Fort Lauderdale, Florida 33304

954-530-0889

http://www.kevintaylorlaw.com/ www.kevintaylorlaw.com

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org  <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org > On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:04 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

It would be great to be able to plead the permissive inference in Fla. Stat. § 713.345(1)(c) and not try to “shoehorn” it into a cause of action. Can’t be the basis for a civil theft claim.

Thank you,

Jack

Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave

Longwood, FL 32750
Telephone: 407-926-4100

mailto:gtwlaw@ymail.com Jack@WCLfirm.com

http://www.wclfirm.com/ www.WCLFirm.com

In some circumstances this firm may be deemed a “debt collector” as defined by the Fair Debt Collection Practices Act and other applicable law. In such a case, this is an attempt to collect a debt. Any communication obtained may be used for that purpose.

Important – Williams Law Firm utilizes spam and junk email filtration applications in its email information systems. These systems may prevent or delay delivery of certain email communications. If you do not receive a response to an email communication within two business days, please contact the intended recipient via phone.

This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information.  If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited.  If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments.  Thank you.

Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service.  If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org  <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org > On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 1:31 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I agree with both of you but think  713.346  would be the better place to make the change.

https://docs.google.com/uc?export=download&id=1KalMQW05id6VH9XGGOU4m_4qGNKHkGKe&revid=0B5E1kpjo603nd2NmVXNnalQva01PMkZuZnp1RkFJcmpRZ1M4PQ

Edward J. Kinberg

Attorney | Stewart Law CS, LLC.

p: 321-541-6845 a: 7341 Office Park Place, Suite 202, Melbourne, FL 32940

w:  https://stewartlawcs.com/ StewartLawCS.com

CONFIDENTIALITY NOTICE: Do not read this e-mail if you are not the intended recipient. This message and all attachments are confidential and may be protected by the attorney-client and other privileges. Any review, use, dissemination, forwarding, printing, copying, disclosure or distribution by persons other than the intended recipients is prohibited and may be unlawful. You must delete this message and any copy of it (in any form) without disclosing it if you believe this message has been sent to you in error. If you have received this transmission in error, please immediately notify us by reply e-mail, by forwarding this to  mailto:desirestewart@stewartlawcs.com desirestewart@stewartlawcs.com or by telephone at (321)541-6845.

On Wed, Oct 28, 2020 at 1:27 PM RPPTL CLC-Discussion <clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org > wrote:

I agree Robert. However, while we are on the subject, couldn’t a similar end be achieved by the Legislature creating a private civil cause of action under 713.345 which currently creates criminal liability for a contractor who misapplies construction funds?  Over the past few years, I have had instances on behalf of both Owner clients and subcontractor clients where a private cause of action under 713.345 for a statutory violation would have been most useful.  When a contractor receives funds from an owner and doesn’t pay subs and suppliers (with no good faith performance related basis to withhold payment), then both the owner and sub will be hurt.  It would be beneficial to see more civil teeth in the legislation.  I have gone the route of getting local law enforcement involved under 713.345 but it is a long and arduous process and very dependent on the quality and interest level of the agency having jurisdiction.

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
mailto:Michael.Gibbons@lowndes-law.com Email |  http://lowndes-law.com Website |  http://lowndes-law.com/people/Michael-Gibbons Bio |  https://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64 VCard

LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org  <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org > On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 12:55 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 713.346: Time to let Owners in on the party?

CAUTION: THIS IS AN EXTERNAL EMAIL

Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor’s failure to pay a lower tier lienor?

And….. before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

Robert E. Doan

Board Certified Construction Attorney

Supreme Court Certified Circuit Civil Mediator

231 N. Woodland Blvd.

DeLand, FL 32720

(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

Website https://protect-us.mimecast.com/s/lvvKCW6jPlh5ymqzF6rI2n/  | Bio http://www.cobbcole.com/The-Cobb-Cole-Team/Robert-E-Doan.shtml  | vCard http://www.cobbcole.com/content/includes/vCards/Robert-E-Doan.vcf

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

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

[v4.30]

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In response to Rob’s original question (“Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor’s failure to pay a lower tier lienor?”) – YES. Because of the next part – (“I know the owner should be getting all the proper releases in order to give themselves a proper payment defense, but . . .”). The “but” part is not a good reason to make a change. It is frustrating, “but” everyone has a job to do and the Owner saving a buck by being his own lawyer and getting hosed is no different than a CG saving a buck by being their own lawyer and getting hosed. Hard to legislate away ignorance.
As for Mikes response, I agree - getting a persecutor to give a damn is worthless. The best recourse I’ve found is DBPR. Free, and causes insufferable pain to the contractor. It has always resulted in payment for me because the crappy contractor needs their ticket so they can continue cheating others.

[cid:image001.png@01D6AD42.8978A400]https://www.npw-law.com/

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 3:03 PM
To: 'clc-discussion@lists.flabarrpptl.org' clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

Hi Larry!!!!! :0)

[cid:image007.jpg@01D6AD42.885D9710]http://www.kubickidraper.com/
Michelle M. Kronehttp://www.kubickidraper.com/staff_detail11.php?MemberID=33
Shareholder
Board Certified Construction Lawyer
Direct  (239) 461-8103
Fax      (239) 939-0700
mmk@kubickidraper.commailto:mmk@kubickidraper.com
13350 Metro Parkway Suite 401http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=13350%20Metro%20Parkway%20Suite%20401+Fort%20Myers,+Florida+33966
Fort Myers, Florida 33966http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=13350%20Metro%20Parkway%20Suite%20401+Fort%20Myers,+Florida+33966

                                            [cid:image008.png@01D6AD42.885D9710] <https://www.linkedin.com/company/kubicki-draper/>  [cid:image009.png@01D6AD42.885D9710] <https://twitter.com/KubickiDraper>

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:54 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

You only include the “scary seeming remedies”  (whatever those are) when the contract is drafted within a week of Halloween.  😊

Larry R. Leiby
Larry R. Leiby, Esq.
Adjunct Professor, Florida International University College of Law
Florida Bar Board Certified Construction Law Expert
Emeritus Fellow, American College of Commercial Arbitrators

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:50 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

Presently my take away from this scenario is that when drafting a contract on behalf of an owner you should always include a specific payment indemnity with lots of scary seeming remedies.

Sincerely,

Peter B. Rowell
Board Certified Construction Attorney
The Law Office of Peter B. Rowell, P.A.
8950 S.W. 74th Court Suite 2201 A-71
Miami, Florida 33156
Phone: (305) 998-9657
[http://kristinlowedesign.com/wp/wp-content/uploads/2018/01/PeterRowellLogo.jpg]
This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately cease reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:19 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I recently encountered this- the bad actor admitted they had been paid and did not pay my client -  I was shocked at the lack of causes of action to chase the money – yes , it’s a crime , but that does not really get the money back

Kevin J. Taylor, Esq.
Kevin J. Taylor, P.A.
2455 East Sunrise Boulevard
Suite 512
Fort Lauderdale, Florida 33304
954-530-0889

[cid:image011.png@01D6AD42.885D9710][cid:image012.png@01D6AD42.885D9710]

www.kevintaylorlaw.comhttp://www.kevintaylorlaw.com/

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:04 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

It would be great to be able to plead the permissive inference in Fla. Stat. § 713.345(1)(c) and not try to “shoehorn” it into a cause of action. Can’t be the basis for a civil theft claim.

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave
Longwood, FL 32750
Telephone: 407-926-4100

Jack@WCLfirm.commailto:gtwlaw@ymail.com
www.WCLFirm.comhttp://www.wclfirm.com/
[cid:image013.jpg@01D6AD42.885D9710]

In some circumstances this firm may be deemed a “debt collector” as defined by the Fair Debt Collection Practices Act and other applicable law. In such a case, this is an attempt to collect a debt. Any communication obtained may be used for that purpose.

Important – Williams Law Firm utilizes spam and junk email filtration applications in its email information systems. These systems may prevent or delay delivery of certain email communications. If you do not receive a response to an email communication within two business days, please contact the intended recipient via phone.
This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information.  If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited.  If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments.  Thank you.
Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service.  If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 1:31 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I agree with both of you but think  713.346  would be the better place to make the change.

100% agreed Peter.  Unfortunately, the vast majority of owners aren’t going to an attorney for help in advance, even during the week before Halloween, or if they do, they are going to the general practitioner that is reviewing contracts a little outside his/her lane that don’t know to add those protections.

As for Michael G’s previous comments about 713.345, I’ve had the same experience with the criminal statute.  I tend to think an owner remedy would fit better in 713.346 than 713.345 though, or in it’s own new statute within 713.

[cid:image006.jpg@01D6AD42.FFC27870]
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
231 N. Woodland Blvd.
DeLand, FL 32720
(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

Websitehttp://www.cobbcole.com/ | Biohttp://www.cobbcole.com/The-Cobb-Cole-Team/Robert-E-Doan.shtml | vCardhttp://www.cobbcole.com/content/includes/vCards/Robert-E-Doan.vcf

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:50 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

Presently my take away from this scenario is that when drafting a contract on behalf of an owner you should always include a specific payment indemnity with lots of scary seeming remedies.

Sincerely,

Peter B. Rowell
Board Certified Construction Attorney
The Law Office of Peter B. Rowell, P.A.
8950 S.W. 74th Court Suite 2201 A-71
Miami, Florida 33156
Phone: (305) 998-9657
[http://kristinlowedesign.com/wp/wp-content/uploads/2018/01/PeterRowellLogo.jpg]
This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately cease reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:19 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I recently encountered this- the bad actor admitted they had been paid and did not pay my client -  I was shocked at the lack of causes of action to chase the money – yes , it’s a crime , but that does not really get the money back

Kevin J. Taylor, Esq.
Kevin J. Taylor, P.A.
2455 East Sunrise Boulevard
Suite 512
Fort Lauderdale, Florida 33304
954-530-0889

[cid:image008.png@01D6AD42.FFC27870][cid:image009.png@01D6AD42.FFC27870]

www.kevintaylorlaw.comhttp://www.kevintaylorlaw.com/

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 2:04 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

It would be great to be able to plead the permissive inference in Fla. Stat. § 713.345(1)(c) and not try to “shoehorn” it into a cause of action. Can’t be the basis for a civil theft claim.

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave
Longwood, FL 32750
Telephone: 407-926-4100

Jack@WCLfirm.commailto:gtwlaw@ymail.com
www.WCLFirm.comhttp://www.wclfirm.com/
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 1:31 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I agree with both of you but think  713.346  would be the better place to make the change.

[https://docs.google.com/uc?export=download&id=1KalMQW05id6VH9XGGOU4m_4qGNKHkGKe&revid=0B5E1kpjo603nd2NmVXNnalQva01PMkZuZnp1RkFJcmpRZ1M4PQ]
Edward J. Kinberg
Attorney | Stewart Law CS, LLC.

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On Wed, Oct 28, 2020 at 1:27 PM RPPTL CLC-Discussion <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org> wrote:

I agree Robert. However, while we are on the subject, couldn’t a similar end be achieved by the Legislature creating a private civil cause of action under 713.345 which currently creates criminal liability for a contractor who misapplies construction funds?  Over the past few years, I have had instances on behalf of both Owner clients and subcontractor clients where a private cause of action under 713.345 for a statutory violation would have been most useful.  When a contractor receives funds from an owner and doesn’t pay subs and suppliers (with no good faith performance related basis to withhold payment), then both the owner and sub will be hurt.  It would be beneficial to see more civil teeth in the legislation.  I have gone the route of getting local law enforcement involved under 713.345 but it is a long and arduous process and very dependent on the quality and interest level of the agency having jurisdiction.

Michael Gibbons
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LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Wednesday, October 28, 2020 12:55 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] 713.346: Time to let Owners in on the party?

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Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor’s failure to pay a lower tier lienor?

And….. before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

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Robert E. Doan
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