Empathy List Archives

BL

Bryan L. Capps

Fri, Feb 17, 2012 2:22 PM

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another tenant.

Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

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.

(Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. <http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com www.kirwinnorris.com <http://www.kirwinnorris.com/> 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.

WL

Weintraub, Lee

Fri, Feb 17, 2012 2:27 PM

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

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

954.985.4147 Phone
954.985.4176 Fax

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

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another tenant.

Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

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.

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. Lee A. Weintraub Board Certified Construction Lawyer Becker & Poliakoff, P.A. Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com http://www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com. Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. <http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com www.kirwinnorris.com <http://www.kirwinnorris.com/> 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.

RJ

Reese J. Henderson, Jr.

Fri, Feb 17, 2012 2:41 PM

Lee raises a good practice point, but my opinion is you are correct that the old tenant did not "prevail" - the old tenant simply is no longer a party to the dispute. The more interesting question to me is whether the contractor has a basis for asserting a lien claim against the new tenant, given that the contractor is not in privity with the new tenant.

Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com

This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.

Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.
Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

Becker & Poliakoffhttp://becker-poliakoff.us/graphics/logo_120.gif http://www.becker-poliakoff.com/

Lee A. Weintraub
Board Certified Construction Lawyer

Emerald Lake Corporate Park

3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub@becker-poliakoff.com
www.becker-poliakoff.com

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another tenant.

Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

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.

Lee raises a good practice point, but my opinion is you are correct that the old tenant did not "prevail" - the old tenant simply is no longer a party to the dispute. The more interesting question to me is whether the contractor has a basis for asserting a lien claim against the new tenant, given that the contractor is not in privity with the new tenant. Reese J. Henderson, Jr. Shareholder GrayRobinson, P.A. 50 North Laura Street, Suite 1100 Jacksonville, Florida 32202 Main: 904-598-9929 | Fax: 904-598-9109 Email: Reese.Henderson@gray-robinson.com This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials. Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Friday, February 17, 2012 9:28 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. Becker & Poliakoff<http://becker-poliakoff.us/graphics/logo_120.gif> <http://www.becker-poliakoff.com/> Lee A. Weintraub Board Certified Construction Lawyer Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com <mailto:CARE@becker-poliakoff.com> . Click here <http://www.floridaconstructionlawauthority.com/> to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. <http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com www.kirwinnorris.com <http://www.kirwinnorris.com/> 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.

DR

Donald R. Walters, Esq.

Fri, Feb 17, 2012 2:45 PM

See Alhambra Homeowners’ Association, Inc. vs. Asad, 943 So.2d 316 (Fla. 4th DCA 2006)

http://www.4dca.org/Dec%202006/12-13-06/4D06-835.op.pdf

This involves voluntary dismissal of a suit without prejudice, but I imagine the same would result when a party is dropped.

Don

Donald R. Walters, Esq.

JOHNSON & WALTERS P.A.

1401 North University Drive

Suite 301

Coral Springs, Florida 33071

dwalters@johnsonwalters.com

Phone: (954) 755-9880

Fax: (954) 755-9899

www.johnsonwalters.com http://www.johnsonwalters.com/

P Please consider the environment before printing this e-mail.

CONFIDENTIALITY NOTICE: This e-mail message, including attachments, is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, is legally privileged, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient but do not wish to receive communications through this medium, please so advise the sender immediately.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

Becker & Poliakoff http://becker-poliakoff.us/graphics/logo_120.gif

Lee A. Weintraub
Board Certified Construction Lawyer

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

954.985.4147 Phone
954.985.4176 Fax

LWeintraub@becker-poliakoff.com
www.becker-poliakoff.com

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another tenant.

Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

http://www.kirwinnorris.com/ Description: Description: Description: H:\HTML Signature Block\Kirwin Norris Logo.gif

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

Description: Description: Description: H:\HTML Signature Block\Construction Law.gif

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.

No virus found in this message.
Checked by AVG - www.avg.com
Version: 2012.0.1913 / Virus Database: 2112/4815 - Release Date: 02/17/12

See Alhambra Homeowners’ Association, Inc. vs. Asad, 943 So.2d 316 (Fla. 4th DCA 2006) http://www.4dca.org/Dec%202006/12-13-06/4D06-835.op.pdf This involves voluntary dismissal of a suit without prejudice, but I imagine the same would result when a party is dropped. - Don Donald R. Walters, Esq. JOHNSON & WALTERS P.A. 1401 North University Drive Suite 301 Coral Springs, Florida 33071 dwalters@johnsonwalters.com Phone: (954) 755-9880 Fax: (954) 755-9899 www.johnsonwalters.com <http://www.johnsonwalters.com/> P Please consider the environment before printing this e-mail. CONFIDENTIALITY NOTICE: This e-mail message, including attachments, is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, is legally privileged, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient but do not wish to receive communications through this medium, please so advise the sender immediately. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Friday, February 17, 2012 9:28 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. Becker & Poliakoff <http://becker-poliakoff.us/graphics/logo_120.gif> Lee A. Weintraub Board Certified Construction Lawyer Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at <mailto:CARE@becker-poliakoff.com> CARE@becker-poliakoff.com. <http://www.floridaconstructionlawauthority.com/> Click here to subscribe to our complimentary Florida Construction Law Blog. _____ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. <http://www.kirwinnorris.com/> Description: Description: Description: H:\HTML Signature Block\Kirwin Norris Logo.gif Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com www.kirwinnorris.com <http://www.kirwinnorris.com/> Description: Description: Description: H:\HTML Signature Block\Construction Law.gif 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. _____ No virus found in this message. Checked by AVG - www.avg.com Version: 2012.0.1913 / Virus Database: 2112/4815 - Release Date: 02/17/12

TR

Timothy R. Moorhead

Fri, Feb 17, 2012 2:50 PM

Bryan,

Did the first tenant get dropped completely or were they kept in under
breach of contract?

Timothy R. Moorhead, Esq.

Wright, Fulford, Moorhead & Brown, P.A.

505 Maitland Avenue

Suite 1000

Altamonte Springs, FL 32701

(407) 425-0234

(407) 425-0260 (fax)

Board Certified in Construction Law

tmoorhead@wfmblaw.com

www.wfmblaw.com

CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments
accompanying it) may contain confidential information belonging to the
sender which is protected by the attorney-client privilege. The information
is intended only for the use of the intended recipient. If you are not the
intended recipient, you are hereby notified that any disclosure, copying,
distribution or the taking of any action in reliance on the contents of this
information is strictly prohibited. Any unauthorized interception of this
transmission is illegal. If you have received this transmission in error,
please promptly notify the sender by reply e-mail, and then destroy all
copies of the transmission.

IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S.
Treasury Department regulations, we hereby advise you that, unless otherwise
expressly stated, any and all tax advice contained in this communication has
neither been written nor intended by the sender or this firm for the use of
any taxpayer for the purpose of evading or avoiding tax penalties that may
be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly
indicated, the use of any tax advice contained in this communication has
neither been written nor intended by the sender or this firm for the purpose
of promoting, marketing, or recommending a partnership or other entity,
investment plan or arrangement to any taxpayer, and such taxpayer should
seek advice on the taxpayers particular circumstances from an independent
tax advisor.

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.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L.
Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract
contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction
lien. (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another
tenant.

Learning of the eviction, Contractor amends complaint to substitute new
tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under
§713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that
the applicable law would be relatively easy to identify, but not so/yet.
Any cites or insights you could offer would be appreciated.

http://www.kirwinnorris.com/ Description: Description: Description:
H:\HTML Signature Block\Kirwin Norris Logo.gif

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

Description: Description: Description: H:\HTML Signature Block\Construction
Law.gif

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.

Bryan, Did the first tenant get dropped completely or were they kept in under breach of contract? Timothy R. Moorhead, Esq. Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com www.wfmblaw.com CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayers particular circumstances from an independent tax advisor. 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. _____ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. <http://www.kirwinnorris.com/> Description: Description: Description: H:\HTML Signature Block\Kirwin Norris Logo.gif Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com www.kirwinnorris.com <http://www.kirwinnorris.com/> Description: Description: Description: H:\HTML Signature Block\Construction Law.gif 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.

AF

Andrea Fair

Fri, Feb 17, 2012 2:50 PM

I agree with Lee but I suppose the argument could be made that the old tenant was not dropped or dismissed but, rather, the new tenant was substituted in because the new tenant is now “standing in the shoes” of the old tenant. Perhaps, it’s similar to the situation where the lienor (sub) sues an owner for lien foreclosure but then the GC transfers the lien to security so now the lienor has to amend to pursue the 713.24 claim and the owner is dropped from the lawsuit. Is the owner the prevailing party? I doubt it. How can that be? Same question here.

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01CCED59.5C1CDF10]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

[http://becker-poliakoff.us/graphics/logo_120.gif]

Lee A. Weintraub
Board Certified Construction Lawyer

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

954.985.4147 Phone
954.985.4176 Fax

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

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question
(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.
Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)
Prior to trial, landlord evicts tenant and re-leases property to another tenant.
Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

[cid:image002.jpg@01CCED59.5C1CDF10]http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com mailto:blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

[cid:image001.jpg@01CCED59.5C1CDF10]

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.

I agree with Lee but I suppose the argument could be made that the old tenant was not dropped or dismissed but, rather, the new tenant was substituted in because the new tenant is now “standing in the shoes” of the old tenant. Perhaps, it’s similar to the situation where the lienor (sub) sues an owner for lien foreclosure but then the GC transfers the lien to security so now the lienor has to amend to pursue the 713.24 claim and the owner is dropped from the lawsuit. Is the owner the prevailing party? I doubt it. How can that be? Same question here. Andrea M. Fair-Purcell Board Certified Construction Attorney ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 13046 Racetrack Road #236 Tampa, FL 33626 (813) 412-1077 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01CCED59.5C1CDF10] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Friday, February 17, 2012 9:28 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. [http://becker-poliakoff.us/graphics/logo_120.gif] Lee A. Weintraub Board Certified Construction Lawyer Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com<http://www.becker-poliakoff.com> Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com<mailto:CARE@becker-poliakoff.com>. Click here<http://www.floridaconstructionlawauthority.com/> to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. [cid:image002.jpg@01CCED59.5C1CDF10]<http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com<mailto:blc@kirwinnorris.com> www.kirwinnorris.com<http://www.kirwinnorris.com/> [cid:image001.jpg@01CCED59.5C1CDF10] 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.

WL

Weintraub, Lee

Fri, Feb 17, 2012 2:51 PM

The new tenant still has a property interest for which foreclosure is sought. Also consider whether you have rights to remove the improvement (if so removable) and sell it per 713.11 since your "owner" (the tenant) no longer has a property interest.

As to Reese's point, which makes sense logically, as the dropped tenant I would argue I did indeed prevail. I was dismissed from the case without being found liable on either the lien or contract. Isn't that the ultimate goal of any defendant?

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

954.985.4147 Phone
954.985.4176 Fax

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Friday, February 17, 2012 9:42 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

Lee raises a good practice point, but my opinion is you are correct that the old tenant did not "prevail" - the old tenant simply is no longer a party to the dispute. The more interesting question to me is whether the contractor has a basis for asserting a lien claim against the new tenant, given that the contractor is not in privity with the new tenant.

Reese J. Henderson, Jr.

Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com
GRAY | ROBINSON http://www.gray-robinson.com/

ATTORNEYS AT LAW

http://www.gray-robinson.com/

This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.

Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.

Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

Becker & Poliakoffhttp://becker-poliakoff.us/graphics/logo_120.gif http://www.becker-poliakoff.com/

Lee A. Weintraub
Board Certified Construction Lawyer

Emerald Lake Corporate Park

3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub@becker-poliakoff.com
www.becker-poliakoff.com

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another tenant.

Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

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.

The new tenant still has a property interest for which foreclosure is sought. Also consider whether you have rights to remove the improvement (if so removable) and sell it per 713.11 since your "owner" (the tenant) no longer has a property interest. As to Reese's point, which makes sense logically, as the dropped tenant I would argue I did indeed prevail. I was dismissed from the case without being found liable on either the lien or contract. Isn't that the ultimate goal of any defendant? Lee A. Weintraub Board Certified Construction Lawyer Becker & Poliakoff, P.A. Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com http://www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Friday, February 17, 2012 9:42 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question Lee raises a good practice point, but my opinion is you are correct that the old tenant did not "prevail" - the old tenant simply is no longer a party to the dispute. The more interesting question to me is whether the contractor has a basis for asserting a lien claim against the new tenant, given that the contractor is not in privity with the new tenant. Reese J. Henderson, Jr. Shareholder GrayRobinson, P.A. 50 North Laura Street, Suite 1100 Jacksonville, Florida 32202 Main: 904-598-9929 | Fax: 904-598-9109 Email: Reese.Henderson@gray-robinson.com GRAY | ROBINSON <http://www.gray-robinson.com/> ATTORNEYS AT LAW <http://www.gray-robinson.com/> This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials. Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Friday, February 17, 2012 9:28 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. Becker & Poliakoff<http://becker-poliakoff.us/graphics/logo_120.gif> <http://www.becker-poliakoff.com/> Lee A. Weintraub Board Certified Construction Lawyer Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com <mailto:CARE@becker-poliakoff.com> . Click here <http://www.floridaconstructionlawauthority.com/> to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. <http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com www.kirwinnorris.com <http://www.kirwinnorris.com/> 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.

LL

Larry Leiby

Fri, Feb 17, 2012 2:53 PM

I tend to agree with Lee. I think that generally the tenant would not be able to establish that he prevailed, but technically he did and there may be facts to establish that the tenant should not have been involved (note likely). Usually they are so happy to get a dismissal, understand the inequity about claiming prevailing party, and are pleased to stipulate to dismissal with parties bearing fees. Absent a stipulation there is still the exposure you fear.

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 Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

[http://becker-poliakoff.us/graphics/logo_120.gif]

Lee A. Weintraub
Board Certified Construction Lawyer

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

954.985.4147 Phone
954.985.4176 Fax

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

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question
(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.
Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)
Prior to trial, landlord evicts tenant and re-leases property to another tenant.
Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

[cid:image001.jpg@01CCED59.F48E9900]http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com mailto:blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

[cid:image002.jpg@01CCED59.F48E9900]

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.

I tend to agree with Lee. I think that generally the tenant would not be able to establish that he prevailed, but technically he did and there may be facts to establish that the tenant should not have been involved (note likely). Usually they are so happy to get a dismissal, understand the inequity about claiming prevailing party, and are pleased to stipulate to dismissal with parties bearing fees. Absent a stipulation there is still the exposure you fear. 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 Weintraub, Lee Sent: Friday, February 17, 2012 9:28 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. [http://becker-poliakoff.us/graphics/logo_120.gif] Lee A. Weintraub Board Certified Construction Lawyer Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com<http://www.becker-poliakoff.com> Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com<mailto:CARE@becker-poliakoff.com>. Click here<http://www.floridaconstructionlawauthority.com/> to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. [cid:image001.jpg@01CCED59.F48E9900]<http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com<mailto:blc@kirwinnorris.com> www.kirwinnorris.com<http://www.kirwinnorris.com/> [cid:image002.jpg@01CCED59.F48E9900] 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.

AF

Andrea Fair

Fri, Feb 17, 2012 2:57 PM

One more thing: my understanding of the present law is that, under the “significant issues” test, the Judge can decide that there is no prevailing party.

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01CCED5A.8B826580]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

From: Andrea Fair
Sent: Friday, February 17, 2012 9:51 AM
To: RPPTL constructionlaw
Subject: RE: [RPPTL-constructionlaw] Fees Question

I agree with Lee but I suppose the argument could be made that the old tenant was not dropped or dismissed but, rather, the new tenant was substituted in because the new tenant is now “standing in the shoes” of the old tenant. Perhaps, it’s similar to the situation where the lienor (sub) sues an owner for lien foreclosure but then the GC transfers the lien to security so now the lienor has to amend to pursue the 713.24 claim and the owner is dropped from the lawsuit. Is the owner the prevailing party? I doubt it. How can that be? Same question here.

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com

[cid:image001.jpg@01CCED5A.8B826580]

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

[http://becker-poliakoff.us/graphics/logo_120.gif]

Lee A. Weintraub
Board Certified Construction Lawyer

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

954.985.4147 Phone
954.985.4176 Fax

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

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question
(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.
Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)
Prior to trial, landlord evicts tenant and re-leases property to another tenant.
Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

[cid:image002.jpg@01CCED5A.8B826580]http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com mailto:blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

[cid:image001.jpg@01CCED5A.8B826580]

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.

One more thing: my understanding of the present law is that, under the “significant issues” test, the Judge can decide that there is no prevailing party. Andrea M. Fair-Purcell Board Certified Construction Attorney ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 13046 Racetrack Road #236 Tampa, FL 33626 (813) 412-1077 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01CCED5A.8B826580] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. From: Andrea Fair Sent: Friday, February 17, 2012 9:51 AM To: RPPTL constructionlaw Subject: RE: [RPPTL-constructionlaw] Fees Question I agree with Lee but I suppose the argument could be made that the old tenant was not dropped or dismissed but, rather, the new tenant was substituted in because the new tenant is now “standing in the shoes” of the old tenant. Perhaps, it’s similar to the situation where the lienor (sub) sues an owner for lien foreclosure but then the GC transfers the lien to security so now the lienor has to amend to pursue the 713.24 claim and the owner is dropped from the lawsuit. Is the owner the prevailing party? I doubt it. How can that be? Same question here. Andrea M. Fair-Purcell Board Certified Construction Attorney ▬▬▬▬▬▬▬▬▬▬▬▬ FAIR•LAW•PLLC ▬▬▬▬▬▬▬▬▬▬▬▬ 13046 Racetrack Road #236 Tampa, FL 33626 (813) 412-1077 phone (877) 879-4990 fax www.fairconstructionliens.com<http://www.fairconstructionliens.com> [cid:image001.jpg@01CCED5A.8B826580] The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Friday, February 17, 2012 9:28 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. [http://becker-poliakoff.us/graphics/logo_120.gif] Lee A. Weintraub Board Certified Construction Lawyer Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com<http://www.becker-poliakoff.com> Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com<mailto:CARE@becker-poliakoff.com>. Click here<http://www.floridaconstructionlawauthority.com/> to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. [cid:image002.jpg@01CCED5A.8B826580]<http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com<mailto:blc@kirwinnorris.com> www.kirwinnorris.com<http://www.kirwinnorris.com/> [cid:image001.jpg@01CCED5A.8B826580] 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.

TM

Timothy Moorhead

Fri, Feb 17, 2012 2:57 PM

I would assume that a notice of lis pendens was filed. The new tenant would be a proper party due to the after acquired interest he now holds.

Timothy R. Moorhead, Esq.
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com
www.wfmblaw.com

CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.

IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.

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.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Friday, February 17, 2012 9:42 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

Lee raises a good practice point, but my opinion is you are correct that the old tenant did not "prevail" - the old tenant simply is no longer a party to the dispute. The more interesting question to me is whether the contractor has a basis for asserting a lien claim against the new tenant, given that the contractor is not in privity with the new tenant.

Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com
GRAY | ROBINSONhttp://www.gray-robinson.com/
ATTORNEYS AT LAW
http://www.gray-robinson.com/

This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.

Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.

Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question
I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

[http://becker-poliakoff.us/graphics/logo_120.gif]http://www.becker-poliakoff.com/

Lee A. Weintraub
Board Certified Construction Lawyer

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

954.985.4147 Phone
954.985.4176 Fax

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

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

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question
(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision.
Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.)
Prior to trial, landlord evicts tenant and re-leases property to another tenant.
Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated.

[cid:image001.jpg@01CCED5A.9A0D8A80]http://www.kirwinnorris.com/

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc@kirwinnorris.com mailto:blc@kirwinnorris.com
www.kirwinnorris.com http://www.kirwinnorris.com/

[cid:image002.jpg@01CCED5A.9A0D8A80]

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.

I would assume that a notice of lis pendens was filed. The new tenant would be a proper party due to the after acquired interest he now holds. Timothy R. Moorhead, Esq. Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com www.wfmblaw.com CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor. 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. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Friday, February 17, 2012 9:42 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question Lee raises a good practice point, but my opinion is you are correct that the old tenant did not "prevail" - the old tenant simply is no longer a party to the dispute. The more interesting question to me is whether the contractor has a basis for asserting a lien claim against the new tenant, given that the contractor is not in privity with the new tenant. Reese J. Henderson, Jr. Shareholder GrayRobinson, P.A. 50 North Laura Street, Suite 1100 Jacksonville, Florida 32202 Main: 904-598-9929 | Fax: 904-598-9109 Email: Reese.Henderson@gray-robinson.com GRAY | ROBINSON<http://www.gray-robinson.com/> ATTORNEYS AT LAW <http://www.gray-robinson.com/> This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials. Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Friday, February 17, 2012 9:28 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Fees Question I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees. Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail. [http://becker-poliakoff.us/graphics/logo_120.gif]<http://www.becker-poliakoff.com/> Lee A. Weintraub Board Certified Construction Lawyer Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com www.becker-poliakoff.com<http://www.becker-poliakoff.com> Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com<mailto:CARE@becker-poliakoff.com>. Click here<http://www.floridaconstructionlawauthority.com/> to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps Sent: Friday, February 17, 2012 9:22 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Fees Question (Hopefully) Quick/easy question for the brain trust: Contractor has improvements contract with tenant, is not paid. Contract contains no prevailing-party fees provision. Contractor sues landlord and tenant under Lien Law to foreclose construction lien. (Assume lien is good against landlord.) Prior to trial, landlord evicts tenant and re-leases property to another tenant. Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant. My stupid question: Is the old tenant now the prevailing party under §713.29 as to the contractor? I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet. Any cites or insights you could offer would be appreciated. [cid:image001.jpg@01CCED5A.9A0D8A80]<http://www.kirwinnorris.com/> Bryan L. Capps Partner | Florida Board Certified in Construction Law Kirwin Norris, P.A. 15 West Church Street Suite 301 Orlando, Florida 32801 Telephone: 407-740-6600 Facsimile: 407-740-6363 blc@kirwinnorris.com<mailto:blc@kirwinnorris.com> www.kirwinnorris.com<http://www.kirwinnorris.com/> [cid:image002.jpg@01CCED5A.9A0D8A80] 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.