[CLC-Discussion] construction claims of lien and the dangers of arbitration

Thu May 22 05:41:42 PDT 2014

I emailed Hardy and Scott Pence yesterday regarding whether this would
be a good topic to have the legislative subcommittee take a look at for
possibly creating/supporting a clarification/codification statute.  

I've had this issue come up several times and have had judges and
opposing counsel "get it" and allow a filing with an immediate stay and
I've had lawyers fight and judges that didn't want stayed cases on their
docket so they  said we had to choose arbitration or litigation at the
outset.   I believe Scott is out this week but I am sure we will get
something going on it soon.  

In my humble opinion, this is not an issue that should have to be
litigated or even discussed every time someone seeks to arbitrate a
claim involving a lien or bond claim.

Robert E. Doan
County Attorney's Office
123 West Indiana Avenue, Ste. 301
DeLand, Florida 32720-4613
Telephone: (386) 736-5950
Fax: (386) 736-5990
Email: rdoan at volusia.org 

>>> Fred Dudley <dudley at mylicenselaw.com> 5/22/2014 8:07 AM >>>
Perhaps not only “meaningless, “ but possibly countered by a
slander of title action, with potential damages for losses due to a
pending sale or re-financing.

Fred R. Dudley, Partner
Board Certified Construction Lawyer
Dudley, Sellers & Healy, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley at mylicenselaw.com 

From: Whelan, Ed [mailto:EWhelan at gunster.com]
Sent: Thursday, May 22, 2014 7:59 AM
To: Neal Sivyer
Cc: Fred Dudley; Tim Atkinson; Randall Gilbert;
clc-discussion at lists.flabarrpptl.org 
Subject: Re: [CLC-Discussion] construction claims of lien and the
dangers of arbitration

You can file a notice of a pending action but if there is no pending
action it's meaningless

Sent from my iPhone

On May 22, 2014, at 7:53 AM, "Neal Sivyer"
<NSivyer at sbwlegal.com<mailto:NSivyer at sbwlegal.com>> wrote:
You cannot. An arbitration is not filed in Court, obviously.
The proper procedure is to file a suit and ask for a stay, as
previously stated.  You can pray for that relief right in the
complaint.

Neal A. Sivyer
Sivyer Barlow & Watson, P.A.
Suntrust Financial Center
401 E. Jackson St.
Suite 2225
Tampa, FL  33602
(p) 813-221-4242
(f)  813-227-8598

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From:
clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Fred
Dudley
Sent: Wednesday, May 21, 2014 8:04 PM
To: Tim Atkinson; Randall Gilbert
Cc:
clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] construction claims of lien and the
dangers of arbitration

I'm not sure you can file a LP without a suit in this case.

Sent from my Verizon Wireless 4G LTE Smartphone

-------- Original message --------
From: Tim Atkinson
Date:05/21/2014 7:50 PM (GMT-05:00)
To: Randall Gilbert
Cc:
clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] construction claims of lien and the
dangers of arbitration
What if a lis pendins is filed?

Timothy P. Atkinson
850-544-5304

On May 21, 2014, at 7:36 PM, "Randall Gilbert"
<rgilbert at theconstructionlawyers.com<mailto:rgilbert at theconstructionlawyers.com<mailto:rgilbert at theconstructionlawyers.com%3cmailto:rgilbert at theconstructionlawyers.com>>>
wrote:

If someone wanted to buy the property and looked in the public records
and saw no suit was brought to enforce the lien within one year they
would think the property is clean.
Filing a foreclosure of a construction lien in an arbitration is not
public notice.
Therefore, the right step to take is to file the foreclosure claim in
court and simultaneously move to stay pending arbitration.

Sincerely yours,
Randall Gilbert, Esq.
Board Certified Construction Lawyer

<image002.jpg>

From:
clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org%3cmailto:clc-discussion-bounces at lists.flabarrpptl.org>>
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Roberts, Hardy L.
Sent: Wednesday, May 21, 2014 3:22 PM
To:
clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org%3cmailto:clc-discussion at lists.flabarrpptl.org>>
Subject: [CLC-Discussion] construction claims of lien and the dangers
of arbitration

Florida’s Second District Court of Appeal issued the attached
decision this morning in Snell v. Mott’s Contracting Services, Inc.,
regarding construction claims of lien and arbitration proceedings.  The
court held that Section 713.21(1) requires that an “action to enforce
a construction lien must be brought ‘in a court of competent
jurisdiction’ within one year of recording the claim of lien or it
automatically extinguishes” and that an arbitration proceeding is not
a “court.”  The court also held that the “the lien became
unenforceable pursuant to section 713.22 prior to the issuance of the
[arbitration] award” due to the contractor’s failure to file an
enforcement action in court.

Much thanks to Matt Belcastro for bringing this decision to the
attention of the Construction Law Committee.

<image003.png>
Hardy L. Roberts
Attorney at Law
Board Certified by the Florida Bar in Construction Law
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4105 | Fax:  813.229.4133

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