Chapter 558 Notice of Defect
Can anyone tell me the practical effects of failing to respond to the
notice of defect? (if entity receiving notice does not want to inspect
or fix the problem)
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.com http://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures
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Thank you.
The entity and or person sending the 558 notice can file suit or proceed with litigation or other alternative dispute resolution
Erum Siddiqui Kistemaker
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From: Tracye [mailto:Tracye@solovelawfirm.com]
Sent: Friday, June 01, 2012 2:54 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Chapter 558 Notice of Defect
Can anyone tell me the practical effects of failing to respond to the notice of defect? (if entity receiving notice does not want to inspect or fix the problem)
[cid:image004.gif@01CD4007.7A13F750]
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.comhttp://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures
This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.
It's a deemed rejection/denial when the time passes. Your analogy is
Hebden v. Roy A. Kunneman Const., 3 So. 3d 417 - which is sort of the
opposite - where the Owner didn't respond to the contractor's offer it
was deemed a rejection.
Bruce D. Partington
Clark Partington
bpartington@cphlaw.com mailto:bpartington@cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law
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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
Tracye
Sent: Friday, June 01, 2012 1:54 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Chapter 558 Notice of Defect
Can anyone tell me the practical effects of failing to respond to the
notice of defect? (if entity receiving notice does not want to inspect
or fix the problem)
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.com http://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures
This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.
Failure to offer to remedy defects or to pay monetary sum to settle claim initiated by Ch. 558 Notice is not admissible in subsequent action for defective construction. Fla. Stat. s. 558.004 (9).
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Friday, June 01, 2012 2:54 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Chapter 558 Notice of Defect
Can anyone tell me the practical effects of failing to respond to the notice of defect? (if entity receiving notice does not want to inspect or fix the problem)
[Logo]
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.comhttp://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures
This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.
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While both 553.004(4) and (7) appear to mandate a response ("must"), (6) permits the claimant to proceed with suit or arbitration if contractor does not timely respond. In addition, pursuant to (15) some subsequent discovery sanctions MAY be available to the claimant to the extent documents are not provided by the contract.
I'm not sure if evidence of the contractor's failure to respond can is relevant and admissible, but the owner will probably want to allege timely and proper service of this notice.
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Friday, June 01, 2012 2:54 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Chapter 558 Notice of Defect
Can anyone tell me the practical effects of failing to respond to the notice of defect? (if entity receiving notice does not want to inspect or fix the problem)
[Logo]
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.comhttp://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures
This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.
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NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
I had a jury trial last month involving 2 such notices and no response. My client spent $800,000 on repairs. Contractor's failure to respond It all came in evidence to show the lack of any alternate repair offer. Failure to mitigate was an issue in the case so it was relevant to show the contractor's failure to respond with any alternate fix to rebut the failure to mitigate.
That's how I suggest to get it in - if on the contractor side and want to keep out, need to think seriously about whether you have a failure to mitigate defense because it you try that defense, any good judge will allow your lack of an alternate repair to come in.
Sent from my iPad
On Jun 2, 2012, at 5:05 PM, "fred.dudley@hklaw.commailto:fred.dudley@hklaw.com" <fred.dudley@hklaw.commailto:fred.dudley@hklaw.com> wrote:
While both 553.004(4) and (7) appear to mandate a response (“must”), (6) permits the claimant to proceed with suit or arbitration if contractor does not timely respond. In addition, pursuant to (15) some subsequent discovery sanctions MAY be available to the claimant to the extent documents are not provided by the contract.
I’m not sure if evidence of the contractor’s failure to respond can is relevant and admissible, but the owner will probably want to allege timely and proper service of this notice.
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/
Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Friday, June 01, 2012 2:54 PM
To: mailto:clc-discussion@lists.flabarrpptl.org clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Chapter 558 Notice of Defect
Can anyone tell me the practical effects of failing to respond to the notice of defect? (if entity receiving notice does not want to inspect or fix the problem)
<image001.gif>
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.comTracye@solovelawfirm.commailto:Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.com/http://www.solovelawfirm.com
Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures
This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
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Thank you all. This is what I meant by “practical effect”.
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.com http://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures
This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.
From: Whelan, Ed [mailto:EWhelan@gunster.com]
Sent: Saturday, June 02, 2012 6:11 PM
To: fred.dudley@hklaw.com
Cc: Tracye; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 Notice of Defect
I had a jury trial last month involving 2 such notices and no response. My client spent $800,000 on repairs. Contractor's failure to respond It all came in evidence to show the lack of any alternate repair offer. Failure to mitigate was an issue in the case so it was relevant to show the contractor's failure to respond with any alternate fix to rebut the failure to mitigate.
That's how I suggest to get it in - if on the contractor side and want to keep out, need to think seriously about whether you have a failure to mitigate defense because it you try that defense, any good judge will allow your lack of an alternate repair to come in.
Sent from my iPad
On Jun 2, 2012, at 5:05 PM, "fred.dudley@hklaw.com" fred.dudley@hklaw.com wrote:
While both 553.004(4) and (7) appear to mandate a response (“must”), (6) permits the claimant to proceed with suit or arbitration if contractor does not timely respond. In addition, pursuant to (15) some subsequent discovery sanctions MAY be available to the claimant to the extent documents are not provided by the contract.
I’m not sure if evidence of the contractor’s failure to respond can is relevant and admissible, but the owner will probably want to allege timely and proper service of this notice.
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com <mailto:fred.dudley@hklaw.com> | www.hklaw.com <http://www.hklaw.com/>
________________________________________________
Add to address book <http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography <http://www.hklaw.com/id77/biosfrdudley>
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Friday, June 01, 2012 2:54 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Chapter 558 Notice of Defect
Can anyone tell me the practical effects of failing to respond to the notice of defect? (if entity receiving notice does not want to inspect or fix the problem)
<image001.gif>
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.com
Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures
This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.
****IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.****
NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
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