Hi, 
Guest
Pic
Sign In

constructionlaw@lists.flabarrpptl.org

RPPTL constructionlaw

View all threads

Fees Question

RJ
Reese J. Henderson, Jr.
Fri, Feb 17, 2012 3:01 PM

Interesting case - the one obvious distinguishing factor is, under Bryan's facts, the lienor dismissed because the old tenant is no longer a proper party, although it was originally.  Thus, the dismissal is not because of a "meritorious affirmative defense", but because of a change in circumstances that could not have been anticipated or dealt with when the suit was filed.  In fact, one could argue the contractor is at risk of paying prevailing party attorney's fees to the old tenant if it refuses to dismiss the old tenant once it becomes clear there is no longer a basis to maintain suit against it.  See, e.g., sec. 57.105(1), F.S. (holding that losing party and losing party's counsel subject to award of fees when they knew or should have known that claim was not supported by material facts, etc., "when initially presented to the court or at any time before trial" (emphasis added)).

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 Donald R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

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 & Poliakoffhttp://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 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.

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

Interesting case - the one obvious distinguishing factor is, under Bryan's facts, the lienor dismissed because the old tenant is no longer a proper party, although it was originally. Thus, the dismissal is not because of a "meritorious affirmative defense", but because of a change in circumstances that could not have been anticipated or dealt with when the suit was filed. In fact, one could argue the contractor is at risk of paying prevailing party attorney's fees to the old tenant if it refuses to dismiss the old tenant once it becomes clear there is no longer a basis to maintain suit against it. See, e.g., sec. 57.105(1), F.S. (holding that losing party and losing party's counsel subject to award of fees when they knew or should have known that claim was not supported by material facts, etc., "when initially presented to the court or at any time before trial" (emphasis added)). 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 Donald R. Walters, Esq. Sent: Friday, February 17, 2012 9:46 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question 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 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. ________________________________ 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
Attached image Attached image
PJ
Paul J. Kelly
Fri, Feb 17, 2012 3:34 PM

I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed.

839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003.

Sincerely,

Paul J. Kelly

Paul J. Kelly, P.A.

2959 First Avenue North

St. Petersburg, Florida 33713

(727) 327-3935

Description: cid:image006153c.jpg

CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender’s consent. All rights protected.  There may be no further distribution or publication of this communication or its contents without the express consent of this law firm.

IRS Circular 230 disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

P Think Green!  Unless necessary, please do not print this email.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

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

I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed. 839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003. Sincerely, Paul J. Kelly Paul J. Kelly, P.A. 2959 First Avenue North St. Petersburg, Florida 33713 (727) 327-3935 Description: cid:image006153c.jpg CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender’s consent. All rights protected. There may be no further distribution or publication of this communication or its contents without the express consent of this law firm. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. P Think Green! Unless necessary, please do not print this email. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq. Sent: Friday, February 17, 2012 9:46 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question 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
Attached image Attached image Attached image
JB
Jason Brazelton
Fri, Feb 17, 2012 4:32 PM

Folks, I have a question relating to the interplay of a statutory claim
under Chapter 713 and the D’Oench/Duhme defense.

Lienor gets pulled into a commercial mortgage foreclosure on a large
construction project. The original lender did not provide notice of its
intent to cease disbursement of funds pursuant to F.S. 713.3471.
Subsequently, the original bank failed (big surprise) and the FDIC took
over. The FDIC sold assets to another bank, which then instituted the
mortgage foreclosure.

Lienor files a counterclaim for violation of 713.3471. On motion to dismiss,
the Bank raises the D’Oench/Duhme doctrine, which is now codified in 12
U.S.C. 1823(e), to defeat the statutory claim.

My understanding of D’Oench/Duhme is that it is/was intended to prevent oral
agreements between a failed bank and its customer that the FDIC/purchasing
bank could not be aware of. However, it seems to be applied fairly liberally
and appears to defeat most claims. I also read somewhere that the
D’Oench/Duhme doctrine will defeat even statutory claims. However, I did not
find a Florida case on point in my research.

Has anyone dealt (or currently dealing) with  a similar situation? If so,
what was the outcome? Can anyone direct me to case law that discusses
D’Oench/Duhme and statutory claims?

Thoughts or comments would be appreciated.

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information
intended only for the individual or entity named within the message. Should
the intended recipient forward 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. If this communication was received in error,
please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J.
Kelly
Sent: Friday, February 17, 2012 10:35 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

I agree with Don in the sense that the most direct route may be procedural
with the voluntary dismissal. Under the voluntary dismissal fees go to the
party (defendant) that was dismissed in certain jurisdictions. Last I
checked, there is a conflict between jurisdictions and the award of fees to
a party that was voluntarily dismissed.

839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter
D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a
Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003.
| Rehearing Denied March 20, 2003.

Sincerely,

Paul J. Kelly

Paul J. Kelly, P.A.

2959 First Avenue North

St. Petersburg, Florida 33713

(727) 327-3935

Description: cid:image006153c.jpg

CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail
message including attachments, if any, 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 or use of the contents of this information is prohibited. If
you are not the intended recipient, please contact the sender by reply
e-mail, destroy all copies of the original message, and do not disseminate
it further. This message may not be reviewed, printed, displayed, or
re-transmitted without the sender’s consent. All rights protected.  There
may be no further distribution or publication of this communication or its
contents without the express consent of this law firm.

IRS Circular 230 disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you
that any tax advice contained in this communication, unless expressly stated
otherwise, was not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding tax-related penalties under the Internal Revenue
Code or (ii) promoting, marketing or recommending to another party any
tax-related matter(s) addressed herein.

P Think Green!  Unless necessary, please do not print this email.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald
R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

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]
mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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]
mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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

Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D’Oench/Duhme defense. Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure. Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D’Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim. My understanding of D’Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D’Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research. Has anyone dealt (or currently dealing) with a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D’Oench/Duhme and statutory claims? Thoughts or comments would be appreciated. Jason A. Brazelton, Esquire Moody and Shea, P.A. 14501 Walsingham Road Largo, Florida 33774 (727) 596-3000 (727) 596-3006 - Fax This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message. -----Original Message----- From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly Sent: Friday, February 17, 2012 10:35 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed. 839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003. Sincerely, Paul J. Kelly Paul J. Kelly, P.A. 2959 First Avenue North St. Petersburg, Florida 33713 (727) 327-3935 Description: cid:image006153c.jpg CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender’s consent. All rights protected. There may be no further distribution or publication of this communication or its contents without the express consent of this law firm. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. P Think Green! Unless necessary, please do not print this email. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq. Sent: Friday, February 17, 2012 9:46 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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
Attached image Attached image Attached image
WL
Weintraub, Lee
Wed, Feb 22, 2012 5:02 PM

Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank.  If that's the case, then they may not have transferred the liability.  The successor bank may not be liable at all for the original bank's failure to comply with 713.3471.

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 Jason Brazelton
Sent: Friday, February 17, 2012 11:33 AM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D'Oench/Duhme defense.

Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure.

Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D'Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim.

My understanding of D'Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D'Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research.

Has anyone dealt (or currently dealing) with  a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D'Oench/Duhme and statutory claims?

Thoughts or comments would be appreciated.

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly
Sent: Friday, February 17, 2012 10:35 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed.

839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003.

Sincerely,

Paul J. Kelly

Paul J. Kelly, P.A.

2959 First Avenue North

St. Petersburg, Florida 33713

(727) 327-3935

CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender's consent. All rights protected.  There may be no further distribution or publication of this communication or its contents without the express consent of this law firm.

IRS Circular 230 disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

P Think Green!  Unless necessary, please do not print this email.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

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] mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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

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] mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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.

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

Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank. If that's the case, then they may not have transferred the liability. The successor bank may not be liable at all for the original bank's failure to comply with 713.3471. 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 Jason Brazelton Sent: Friday, February 17, 2012 11:33 AM To: 'RPPTL constructionlaw' Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D'Oench/Duhme defense. Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure. Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D'Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim. My understanding of D'Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D'Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research. Has anyone dealt (or currently dealing) with a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D'Oench/Duhme and statutory claims? Thoughts or comments would be appreciated. Jason A. Brazelton, Esquire Moody and Shea, P.A. 14501 Walsingham Road Largo, Florida 33774 (727) 596-3000 (727) 596-3006 - Fax This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message. -----Original Message----- From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly Sent: Friday, February 17, 2012 10:35 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed. 839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003. Sincerely, Paul J. Kelly Paul J. Kelly, P.A. 2959 First Avenue North St. Petersburg, Florida 33713 (727) 327-3935 CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender's consent. All rights protected. There may be no further distribution or publication of this communication or its contents without the express consent of this law firm. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. P Think Green! Unless necessary, please do not print this email. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq. Sent: Friday, February 17, 2012 9:46 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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. ________________________________ 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
Attached image Attached image Attached image
CB
Charles B. Hernicz, Esq
Wed, Feb 22, 2012 5:35 PM

I have two cases where this exact issue is involved, and the purchasing bank does not have any liability under 713.3471 under the FDIC sale agreement.

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Wednesday, February 22, 2012 12:03 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank.  If that's the case, then they may not have transferred the liability.  The successor bank may not be liable at all for the original bank's failure to comply with 713.3471.

Image removed by sender. Becker & Poliakoff

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.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Jason Brazelton
Sent: Friday, February 17, 2012 11:33 AM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D’Oench/Duhme defense.

Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure.

Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D’Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim.

My understanding of D’Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D’Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research.

Has anyone dealt (or currently dealing) with  a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D’Oench/Duhme and statutory claims?

Thoughts or comments would be appreciated.

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly
Sent: Friday, February 17, 2012 10:35 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed.

839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003.

Sincerely,

Paul J. Kelly

Paul J. Kelly, P.A.

2959 First Avenue North

St. Petersburg, Florida 33713

(727) 327-3935

Description: cid:image006153c.jpg

CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender’s consent. All rights protected.  There may be no further distribution or publication of this communication or its contents without the express consent of this law firm.

IRS Circular 230 disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

P Think Green!  Unless necessary, please do not print this email.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

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] mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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.

Image removed by sender. Becker & Poliakoff

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] mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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

I have two cases where this exact issue is involved, and the purchasing bank does not have any liability under 713.3471 under the FDIC sale agreement. Charles B. Hernicz, Esq. Board Certified in Construction Law by The Florida Bar Hernicz Legal Services, P.L. 15854 Bent Creek Road Wellington, FL 33414 Telephone: (561) 753-7511 Facsimile: (561) 753-7082 Chernicz@HerniczLegal.com From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Wednesday, February 22, 2012 12:03 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank. If that's the case, then they may not have transferred the liability. The successor bank may not be liable at all for the original bank's failure to comply with 713.3471. Image removed by sender. Becker & Poliakoff 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. _____ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Jason Brazelton Sent: Friday, February 17, 2012 11:33 AM To: 'RPPTL constructionlaw' Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D’Oench/Duhme defense. Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure. Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D’Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim. My understanding of D’Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D’Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research. Has anyone dealt (or currently dealing) with a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D’Oench/Duhme and statutory claims? Thoughts or comments would be appreciated. Jason A. Brazelton, Esquire Moody and Shea, P.A. 14501 Walsingham Road Largo, Florida 33774 (727) 596-3000 (727) 596-3006 - Fax This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message. -----Original Message----- From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly Sent: Friday, February 17, 2012 10:35 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed. 839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003. Sincerely, Paul J. Kelly Paul J. Kelly, P.A. 2959 First Avenue North St. Petersburg, Florida 33713 (727) 327-3935 Description: cid:image006153c.jpg CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender’s consent. All rights protected. There may be no further distribution or publication of this communication or its contents without the express consent of this law firm. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. P Think Green! Unless necessary, please do not print this email. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq. Sent: Friday, February 17, 2012 9:46 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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. Image removed by sender. Becker & Poliakoff 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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
Attached image Attached image Attached image Attached image Attached image
JB
Jason Brazelton
Wed, Feb 22, 2012 7:57 PM

Thank you Lee and Charles.

The bank’s attorney is asserting that it was an assignment of the loan from
the FDIC. I don’t know if that makes a difference under D’Oench or not…

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information
intended only for the individual or entity named within the message. Should
the intended recipient forward 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. If this communication was received in error,
please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles
B. Hernicz, Esq
Sent: Wednesday, February 22, 2012 12:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

I have two cases where this exact issue is involved, and the purchasing bank
does not have any liability under 713.3471 under the FDIC sale agreement.

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

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Weintraub, Lee
Sent: Wednesday, February 22, 2012 12:03 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Although I don't know the answer to your specific question, you did mention
that the FDIC sold the ASSETS to the successor bank.  If that's the case,
then they may not have transferred the liability.  The successor bank may
not be liable at all for the original bank's failure to comply with
713.3471.

Image removed by sender. Becker & Poliakoff

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.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Jason
Brazelton
Sent: Friday, February 17, 2012 11:33 AM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Folks, I have a question relating to the interplay of a statutory claim
under Chapter 713 and the D’Oench/Duhme defense.

Lienor gets pulled into a commercial mortgage foreclosure on a large
construction project. The original lender did not provide notice of its
intent to cease disbursement of funds pursuant to F.S. 713.3471.
Subsequently, the original bank failed (big surprise) and the FDIC took
over. The FDIC sold assets to another bank, which then instituted the
mortgage foreclosure.

Lienor files a counterclaim for violation of 713.3471. On motion to dismiss,
the Bank raises the D’Oench/Duhme doctrine, which is now codified in 12
U.S.C. 1823(e), to defeat the statutory claim.

My understanding of D’Oench/Duhme is that it is/was intended to prevent oral
agreements between a failed bank and its customer that the FDIC/purchasing
bank could not be aware of. However, it seems to be applied fairly liberally
and appears to defeat most claims. I also read somewhere that the
D’Oench/Duhme doctrine will defeat even statutory claims. However, I did not
find a Florida case on point in my research.

Has anyone dealt (or currently dealing) with  a similar situation? If so,
what was the outcome? Can anyone direct me to case law that discusses
D’Oench/Duhme and statutory claims?

Thoughts or comments would be appreciated.

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information
intended only for the individual or entity named within the message. Should
the intended recipient forward 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. If this communication was received in error,
please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J.
Kelly
Sent: Friday, February 17, 2012 10:35 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

I agree with Don in the sense that the most direct route may be procedural
with the voluntary dismissal. Under the voluntary dismissal fees go to the
party (defendant) that was dismissed in certain jurisdictions. Last I
checked, there is a conflict between jurisdictions and the award of fees to
a party that was voluntarily dismissed.

839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter
D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a
Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003.
| Rehearing Denied March 20, 2003.

Sincerely,

Paul J. Kelly

Paul J. Kelly, P.A.

2959 First Avenue North

St. Petersburg, Florida 33713

(727) 327-3935

Description: cid:image006153c.jpg

CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail
message including attachments, if any, 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 or use of the contents of this information is prohibited. If
you are not the intended recipient, please contact the sender by reply
e-mail, destroy all copies of the original message, and do not disseminate
it further. This message may not be reviewed, printed, displayed, or
re-transmitted without the sender’s consent. All rights protected.  There
may be no further distribution or publication of this communication or its
contents without the express consent of this law firm.

IRS Circular 230 disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you
that any tax advice contained in this communication, unless expressly stated
otherwise, was not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding tax-related penalties under the Internal Revenue
Code or (ii) promoting, marketing or recommending to another party any
tax-related matter(s) addressed herein.

P Think Green!  Unless necessary, please do not print this email.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald
R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

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]
mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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.

Image removed by sender. Becker & Poliakoff

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]
mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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

Thank you Lee and Charles. The bank’s attorney is asserting that it was an assignment of the loan from the FDIC. I don’t know if that makes a difference under D’Oench or not… Jason A. Brazelton, Esquire Moody and Shea, P.A. 14501 Walsingham Road Largo, Florida 33774 (727) 596-3000 (727) 596-3006 - Fax This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message. -----Original Message----- From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq Sent: Wednesday, February 22, 2012 12:35 PM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 I have two cases where this exact issue is involved, and the purchasing bank does not have any liability under 713.3471 under the FDIC sale agreement. Charles B. Hernicz, Esq. Board Certified in Construction Law by The Florida Bar Hernicz Legal Services, P.L. 15854 Bent Creek Road Wellington, FL 33414 Telephone: (561) 753-7511 Facsimile: (561) 753-7082 Chernicz@HerniczLegal.com From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Wednesday, February 22, 2012 12:03 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank. If that's the case, then they may not have transferred the liability. The successor bank may not be liable at all for the original bank's failure to comply with 713.3471. Image removed by sender. Becker & Poliakoff 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. _____ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Jason Brazelton Sent: Friday, February 17, 2012 11:33 AM To: 'RPPTL constructionlaw' Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D’Oench/Duhme defense. Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure. Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D’Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim. My understanding of D’Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D’Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research. Has anyone dealt (or currently dealing) with a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D’Oench/Duhme and statutory claims? Thoughts or comments would be appreciated. Jason A. Brazelton, Esquire Moody and Shea, P.A. 14501 Walsingham Road Largo, Florida 33774 (727) 596-3000 (727) 596-3006 - Fax This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message. -----Original Message----- From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly Sent: Friday, February 17, 2012 10:35 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed. 839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003. Sincerely, Paul J. Kelly Paul J. Kelly, P.A. 2959 First Avenue North St. Petersburg, Florida 33713 (727) 327-3935 Description: cid:image006153c.jpg CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender’s consent. All rights protected. There may be no further distribution or publication of this communication or its contents without the express consent of this law firm. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. P Think Green! Unless necessary, please do not print this email. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq. Sent: Friday, February 17, 2012 9:46 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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. Image removed by sender. Becker & Poliakoff 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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
Attached image Attached image Attached image Attached image Attached image
WL
Weintraub, Lee
Wed, Feb 22, 2012 8:03 PM

Get the assignment.  I litigated a case like this in federal court last year (although D'Oench wasn't raised) and the transferring documents from FDIC to the new bank excluded liabilities of the original bank.

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 Jason Brazelton
Sent: Wednesday, February 22, 2012 2:57 PM
To: CHernicz@herniczlegal.com; 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Thank you Lee and Charles.

The bank's attorney is asserting that it was an assignment of the loan from the FDIC. I don't know if that makes a difference under D'Oench or not...

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, February 22, 2012 12:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

I have two cases where this exact issue is involved, and the purchasing bank does not have any liability under 713.3471 under the FDIC sale agreement.

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

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Wednesday, February 22, 2012 12:03 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank.  If that's the case, then they may not have transferred the liability.  The successor bank may not be liable at all for the original bank's failure to comply with 713.3471.

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 .

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Jason Brazelton
Sent: Friday, February 17, 2012 11:33 AM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D'Oench/Duhme defense.

Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure.

Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D'Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim.

My understanding of D'Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D'Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research.

Has anyone dealt (or currently dealing) with  a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D'Oench/Duhme and statutory claims?

Thoughts or comments would be appreciated.

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly
Sent: Friday, February 17, 2012 10:35 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed.

839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003.

Sincerely,

Paul J. Kelly

Paul J. Kelly, P.A.

2959 First Avenue North

St. Petersburg, Florida 33713

(727) 327-3935

CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender's consent. All rights protected.  There may be no further distribution or publication of this communication or its contents without the express consent of this law firm.

IRS Circular 230 disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

P Think Green!  Unless necessary, please do not print this email.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

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] mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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.

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] mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d  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.

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

Get the assignment. I litigated a case like this in federal court last year (although D'Oench wasn't raised) and the transferring documents from FDIC to the new bank excluded liabilities of the original bank. 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 Jason Brazelton Sent: Wednesday, February 22, 2012 2:57 PM To: CHernicz@herniczlegal.com; 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Thank you Lee and Charles. The bank's attorney is asserting that it was an assignment of the loan from the FDIC. I don't know if that makes a difference under D'Oench or not... Jason A. Brazelton, Esquire Moody and Shea, P.A. 14501 Walsingham Road Largo, Florida 33774 (727) 596-3000 (727) 596-3006 - Fax This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message. -----Original Message----- From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq Sent: Wednesday, February 22, 2012 12:35 PM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 I have two cases where this exact issue is involved, and the purchasing bank does not have any liability under 713.3471 under the FDIC sale agreement. Charles B. Hernicz, Esq. Board Certified in Construction Law by The Florida Bar Hernicz Legal Services, P.L. 15854 Bent Creek Road Wellington, FL 33414 Telephone: (561) 753-7511 Facsimile: (561) 753-7082 Chernicz@HerniczLegal.com From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee Sent: Wednesday, February 22, 2012 12:03 PM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank. If that's the case, then they may not have transferred the liability. The successor bank may not be liable at all for the original bank's failure to comply with 713.3471. 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> . ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Jason Brazelton Sent: Friday, February 17, 2012 11:33 AM To: 'RPPTL constructionlaw' Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471 Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D'Oench/Duhme defense. Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure. Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D'Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim. My understanding of D'Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D'Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research. Has anyone dealt (or currently dealing) with a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D'Oench/Duhme and statutory claims? Thoughts or comments would be appreciated. Jason A. Brazelton, Esquire Moody and Shea, P.A. 14501 Walsingham Road Largo, Florida 33774 (727) 596-3000 (727) 596-3006 - Fax This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward 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. If this communication was received in error, please notify us by reply e-mail and delete the original message. -----Original Message----- From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Paul J. Kelly Sent: Friday, February 17, 2012 10:35 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed. 839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003. Sincerely, Paul J. Kelly Paul J. Kelly, P.A. 2959 First Avenue North St. Petersburg, Florida 33713 (727) 327-3935 CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, 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 or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender's consent. All rights protected. There may be no further distribution or publication of this communication or its contents without the express consent of this law firm. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. P Think Green! Unless necessary, please do not print this email. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq. Sent: Friday, February 17, 2012 9:46 AM To: 'RPPTL constructionlaw' Subject: Re: [RPPTL-constructionlaw] Fees Question 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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. 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] <mailto:%5bmailto:constructionlaw-bounces@lists.flabarrpptl.org%5d> 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. ________________________________ 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
Attached image Attached image Attached image Attached image Attached image
KL
Keith Lichtman
Thu, Mar 1, 2012 6:05 PM

I am trying to find someone to serve as an expert witness with extensive experience erecting pre-engineered metal buildings and the related work that entails (setting the anchor bolts etc. etc.).

If anyone knows of people with extensive experience doing this, preferably in or near the Savannah, GA area, please let my partner, Richard Storrs (copied here) and me know.

Thanks for your help.

[cid:image001.jpg@01CCF7AB.FC7005D0]

Keith Lichtman
1355 Peachtree Street NE
Suite 1550
Atlanta, GA 30309
Tel. 404-870-8200
Fax. 404-870-3080
klichtman@mpdlegal.comblocked::mailto:smills@mpdlegal.com
Florida Board-Certified in Construction Law

Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, deleting the email and any attachments from your system, and destroying any hardcopies that you may have printed. Thank you.

Disclaimer under IRS Circular 230: Unless expressly stated otherwise in this transmission, nothing contained in this message is intended or written to be used, nor may it be relied upon or used: (1) by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code, as amended; and/or (2) by any person to support the promotion or marketing of, or to recommend any Federal tax transaction or matter addressed herein.

I am trying to find someone to serve as an expert witness with extensive experience erecting pre-engineered metal buildings and the related work that entails (setting the anchor bolts etc. etc.). If anyone knows of people with extensive experience doing this, preferably in or near the Savannah, GA area, please let my partner, Richard Storrs (copied here) and me know. Thanks for your help. [cid:image001.jpg@01CCF7AB.FC7005D0] Keith Lichtman 1355 Peachtree Street NE Suite 1550 Atlanta, GA 30309 Tel. 404-870-8200 Fax. 404-870-3080 klichtman@mpdlegal.com<blocked::mailto:smills@mpdlegal.com> Florida Board-Certified in Construction Law Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, deleting the email and any attachments from your system, and destroying any hardcopies that you may have printed. Thank you. Disclaimer under IRS Circular 230: Unless expressly stated otherwise in this transmission, nothing contained in this message is intended or written to be used, nor may it be relied upon or used: (1) by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code, as amended; and/or (2) by any person to support the promotion or marketing of, or to recommend any Federal tax transaction or matter addressed herein.
Attached image
CB
Charles B. Hernicz, Esq
Thu, Mar 1, 2012 10:25 PM

Keith, one of my clients (information below) is a PE who specializes in concrete restoration but has constructed a number of metal buildings and has a GC in the Savannah area who recently built a metal hangar for him and has built about 1000 metal buildings.  Dave smakes a very good witness himself, and he'd be happy to talk to you and give the the GC's information as well---give him a call.

Chuck

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

David T Colston, PE

President

Structural Engineering Associates, Inc.

Office 561-844-4060

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Keith Lichtman
Sent: Thursday, March 01, 2012 1:06 PM
To: RPPTL constructionlaw
Cc: Richard J. Storrs
Subject: [RPPTL-constructionlaw] Metal Building Erector Expert in or near Savannah, GA?

I am trying to find someone to serve as an expert witness with extensive experience erecting pre-engineered metal buildings and the related work that entails (setting the anchor bolts etc. etc.).

If anyone knows of people with extensive experience doing this, preferably in or near the Savannah, GA area, please let my partner, Richard Storrs (copied here) and me know.

Thanks for your help.

cid:image001.jpg@01CC60DD.DA5B57C0

Keith Lichtman

1355 Peachtree Street NE

Suite 1550

Atlanta, GA 30309

Tel. 404-870-8200

Fax. 404-870-3080

klichtman@mpdlegal.com blocked::mailto:smills@mpdlegal.com

Florida Board-Certified in Construction Law

Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, deleting the email and any attachments from your system, and destroying any hardcopies that you may have printed. Thank you.

Disclaimer under IRS Circular 230: Unless expressly stated otherwise in this transmission, nothing contained in this message is intended or written to be used, nor may it be relied upon or used: (1) by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code, as amended; and/or (2) by any person to support the promotion or marketing of, or to recommend any Federal tax transaction or matter addressed herein.

Keith, one of my clients (information below) is a PE who specializes in concrete restoration but has constructed a number of metal buildings and has a GC in the Savannah area who recently built a metal hangar for him and has built about 1000 metal buildings. Dave smakes a very good witness himself, and he'd be happy to talk to you and give the the GC's information as well---give him a call. Chuck Charles B. Hernicz, Esq. Board Certified in Construction Law by The Florida Bar Hernicz Legal Services, P.L. 15854 Bent Creek Road Wellington, FL 33414 Telephone: (561) 753-7511 Facsimile: (561) 753-7082 Chernicz@HerniczLegal.com David T Colston, PE President Structural Engineering Associates, Inc. Office 561-844-4060 From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Keith Lichtman Sent: Thursday, March 01, 2012 1:06 PM To: RPPTL constructionlaw Cc: Richard J. Storrs Subject: [RPPTL-constructionlaw] Metal Building Erector Expert in or near Savannah, GA? I am trying to find someone to serve as an expert witness with extensive experience erecting pre-engineered metal buildings and the related work that entails (setting the anchor bolts etc. etc.). If anyone knows of people with extensive experience doing this, preferably in or near the Savannah, GA area, please let my partner, Richard Storrs (copied here) and me know. Thanks for your help. cid:image001.jpg@01CC60DD.DA5B57C0 Keith Lichtman 1355 Peachtree Street NE Suite 1550 Atlanta, GA 30309 Tel. 404-870-8200 Fax. 404-870-3080 klichtman@mpdlegal.com <blocked::mailto:smills@mpdlegal.com> Florida Board-Certified in Construction Law Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, deleting the email and any attachments from your system, and destroying any hardcopies that you may have printed. Thank you. Disclaimer under IRS Circular 230: Unless expressly stated otherwise in this transmission, nothing contained in this message is intended or written to be used, nor may it be relied upon or used: (1) by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code, as amended; and/or (2) by any person to support the promotion or marketing of, or to recommend any Federal tax transaction or matter addressed herein.
Attached image
Empathy v1.0   2026 ©EMWD.com
Documentation