[CLC-Discussion] New Statute of Repose Decision in 5th DCA

Mon May 11 14:03:40 PDT 2015

There is a statute that makes an agreement to shorten the time for the statute of limitations void and unenforceable.   I suspect the same would be true of shortening the repose period.  Bumping up the trigger date for the repose period might effectively shorten the period.

Food for thought.

[cid:imaged26635.PNG at 9adc2ef8.46997b67]
   www.csklegal.com<http://www.csklegal.com>    George R. Truitt, Esq.
George.Truitt at csklegal.com<mailto:George.Truitt at csklegal.com>
Tel:    305-350-5331
Fax:    305-373-2294
Cole, Scott & Kissane Building
9150 South Dadeland Boulevard, Suite 1400
Miami, Florida 33156<https://maps.google.com/maps?q=9150%20S%20Dadeland%20Blvd%2C%20Suite%201400%20miami%2Cfl%2033156&bav=on.2,or.&bvm=bv.57155469,d.cWc,pv.xjs.s.en_US.v-r5CthikH8.O&biw=792&bih=484&wrapid=tlif138626915620421&um=1&ie=UTF-8&hl=en&sa=N&tab=wl>
        [cid:image13794e.JPG at df4b770b.4bbe183f]

From: Sean A. Mickley [mailto:smickley at gouldcooksey.com]
Sent: Monday, May 11, 2015 2:23 PM
To: Bryan L. Capps; clc-discussion at lists.flabarrpptl.org
Subject: ***SPAM*** Re: [CLC-Discussion] New Statute of Repose Decision in 5th DCA

I could see where it could be a problem. Although if the parties agree at the outset in the prime or sub-contract a certain act constitutes the contract completion date, I am not sure there is anything wrong with that. It certainly does not seek to circumvent the law under 95.11(3)(c), Fla. Stat. , but rather clarify something that could be disputed in the future

[Description: newlogo]

Sean A. Mickley, Esq.

Gould Cooksey Fennell

979 Beachland Boulevard

Vero Beach, FL 32963

Telephone  772-231-1100      Fax 772-231-2020

smickley at gouldcooksey.com<mailto:smickley at gouldcooksey.com>

The information contained in this transmission is attorney privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, do not read it. Please immediately reply to the sender that you received this communication in error and then delete it. Thank you.

Circular 230 Disclosure: In compliance with the requirements imposed by the Internal Revenue Service pursuant to IRS Circular 230, we inform you that any tax advice contained in this communication(including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.

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 Bryan L. Capps
Sent: Monday, May 11, 2015 2:06 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] New Statute of Repose Decision in 5th DCA

Might not such a provision be void under Fla. Stat. §95.03<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0095/Sections/0095.03.html>?

Bryan L. Capps, Esq.
Board Certified in Construction Law by the Florida Bar
Moye, O’Brien, Pickert & Dillon, LLP
800 S. Orlando Ave.
Maitland, FL 32751
Ph:  (407) 622-5250
Cell: (407) 808-0098
bcapps at moopd.com<mailto:bcapps at moopd.com>
www.moopd.com<http://www.moopd.com>

-----Original Message-----
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 Robert Doan
Sent: Monday, May 11, 2015 1:37 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] New Statute of Repose Decision in 5th DCA

And perhaps a new practice point to consider:

In drafting settlement agreements where final payment was delayed for any reason, the parties should attempt to agree to and memorialize an agreed project completion date for the purposes of any future litigation related to latent defects. One less thing to litigate later on.

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<mailto:rdoan at volusia.org>

>>> Fred Dudley <dudley at mylicenselaw.com<mailto:dudley at mylicenselaw.com>> 5/11/2015 12:55 PM >>>

I understand, but would be opposed to opening up the SOR for this purpose.

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<mailto:dudley at mylicenselaw.com>

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 Robert Worman

Sent: Monday, May 11, 2015 12:18 PM

To: Timothy R. Moorhead; Jeff Price; 'Roberts, Hardy L.'; 'CLC Discussion'

Subject: Re: [CLC-Discussion] New Statute of Repose Decision in 5th DCA

So an owner can intentionally delay payment, or, where in good faith disputes final payment by litigation which it loses, and then is rewarded by getting the windfall of an extended SOL under the Statute of Repose?

Does not seem fair.  Maybe we should be considering a legislative fix?

Regards,

Robert B. Worman

Worman & Sheffler, P.A.

2707 West Fairbanks Avenue

Suite 200

Winter Park, FL 32789

407 843-5353

rworman at wormanlaw.com<mailto:rworman at wormanlaw.com<mailto:rworman at wormanlaw.com%3cmailto:rworman at wormanlaw.com>>

NOTICE:

THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED.  IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE.  PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.

TAX ADVICE DISCLOSURE:  TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN.

PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT.  ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.

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 Timothy R. Moorhead

Sent: Monday, May 11, 2015 11:30 AM

To: Jeff Price; 'Roberts, Hardy L.'; 'CLC Discussion'

Subject: Re: [CLC-Discussion] New Statute of Repose Decision in 5th DCA

Peers:

Frankly, I think the 5th got it right.  I would be cautious that the question put to the Court was very finite and avoid the urge to over apply the ruling.  The question was, when is a contract complete for the purposes of the Statute of Repose?  The simple answer, in my simple mind at least, is when all performance due thereunder, including payment has occurred.  Here, payment was due after performance and is a clear indication of the Owner's agreement that performance by the Contractor was complete.

The legislature should have said "construction" if that is what they meant.  They said "contract."  We have to assume that they knew and appreciated the difference.

Timothy R. Moorhead, Esq.

[cid:image001.jpg at 01CF533E.817267B0]

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

505 Maitland Avenue

Suite 1000

Altamonte Springs, FL 32701

(407) 425-0234

(407) 425-0260 (fax)

Board Certified in Construction Law

tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com%3cmailto:tmoorhead at wfmblaw.com>>

www.wfmblaw.com<http://www.wfmblaw.com<http://www.wfmblaw.com%3chttp:/www.wfmblaw.com>>

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

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

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

From: 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 Jeff Price

Sent: Monday, May 11, 2015 10:43 AM

To: 'Roberts, Hardy L.'; 'CLC Discussion'

Subject: [CLC-Discussion] New Statute of Repose Decision in 5th DCA

Cypress v. Bergeron, 5D13-4102 (May 8, 2015).

The 5th DCA has created an unnecessary rule for when a construction contract is complete. They have created what can only be called a bright-line rule. The contract between an Owner and a Contractor is complete upon payment to the Contractor.

A bright line rule should work all the time and be equitable to both parties if, as the court said, the statute language is unambiguous.

"[A] bright-line test will ordinarily require only a cursory review of the record by a trial court." [A] bright-line rule [is] appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active." Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 791-92 (Fla. 2011).

By holding that the date of final payment to the contractor signifies the contract completion the Court add ambiguity to the mix. Further, this ruling ignores three things in my mind:

1)       Reality - the facts on the ground. For example: In this case, had the Owner and/or the A/E accepted the buildings and were they being used and occupied by the Owner? At the time of submitting the final pay application did anyone disagree that the work was done?

a.      Was the 3 day lag for payment simply a "passive" ministerial act whose timing was dependent upon the postal service?

b.      The pay app was delivered on Wednesday and "final payment" was made on Friday. So, was the check written on Friday? Was it "deposited" or was it "settled" on Friday at the bank? Was it "mailed" on Friday? Was it "signed" on Friday? Or was it handed to the contractor on Friday?

If the Court is creating a bright-line rule about when a construction contract is complete ("Completion of the contract means completion of performance by both sides of the contract") then we need more direction than "payment was made."

The thing is, the trial court can hold an evidentiary hearing. The DCA should have punted and said that the date of completion of the contract is fact dependent.

2)      The Fudge Factor - Owners now get to determine the contract completion date (and this is just as unfair as allowing the GC to determine it by sending the final pay app early). Would the Court have ruled differently if the Owner took 90 days to pay? If they would have ruled differently, then this is a bad bright-line rule.

3)      Slow Pay Incentive - Any reason for an Owner to pay quickly  given this ruling? Will this ruling delay final payments in some regards?

Does the Court's ruling work if, say, the Owner and GC are at odds at the end of the contract?

Let's try an everyday construction law example:

GC says they are done and sends final pay app and everything else required by statute and the contract.

Owner says GC is not done and withholds payment claiming some sticking point (how many times does that happen?).

For the next six months both sides argue about something. (I had one where it was door numbers in the wrong typeface).

After six months they all realize the lawyers are costing too much money and they just drop the matter.

No written settlement, no promises, no extra performance by either side; they just decide to stop fighting.

The Owner sends the final payment. Is the contract complete now? Or was it complete six months earlier?

Does the 5th DCA's bright-line rule accomplish justice if, later on in a repose fight, the Owner gets to claim an extra 6 months?

Jeffrey L. Price, Esq.

Florida Bar Board Certified - Construction Law Florida Civil-law Notary

Niesen|Price|Worthy|Campo, PA

5216 SW 91st Drive  Gainesville, FL 32608

Ph (352) 373-9031   Fax (352) 373-9099

http://npw-law.com<http://npw-law.com/<http://npw-law.com%3chttp:/npw-law.com/>>

[npw-logo-circle-orange-medium][ConstructionLaw small logo]    [http://www.boyd-jenerette.com/blog/wp-content/uploads/2012/05/nacln12.gif]                          This communication is intended for the sole use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law.  If the reader of this communication is not the intended recipient, employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this communication in error, please immediately notify me by telephone, delete this communication, and destroy any copies of it.  Thank you.

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: Friday, May 08, 2015 2:14 PM

To: CLC Discussion (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] CLC -- New Statute of Repose Decision

The Fifth District held today (in the attached opinion that is not yet final) that the statute of repose commenced to run when a construction contract was completed rather than when construction was completed. The parties argued over whether the statute of repose began to run from the date the contractor made its final application for payment or whether the period ran from the date the final payment was made. The Fifth DCA held that the contract at issue was complete when the final payment was made and that the statute began to run on that later date.

[Carlton Fields Jorden Burt, P.A.]

Hardy L. Roberts

Attorney at Law

Board Certified in Construction Law by the Florida Bar

4221 W. Boy Scout Blvd., Ste. 1000

Tampa, Florida  33607-5780

Direct:  813.229.4105 | Fax:  813.229.4133

HRoberts at cfjblaw.com<mailto:HRoberts at cfjblaw.com<mailto:HRoberts at cfjblaw.com%3cmailto:HRoberts at cfjblaw.com>> | www.CFJBLaw.com<http://www.cfjblaw.com/<http://www.CFJBLaw.com%3chttp:/www.cfjblaw.com/>>

bio<http://www.cfjblaw.com/hroberts/> | vcard<http://www.cfjblaw.com/FCWSite/Features/_Attorneys/vCard.aspx?attorney=176>  | LinkedIn<http://www.linkedin.com/profile/view?id=249761797&trk=nav_responsive_tab_profile>

Confidential: This e-mail contains a communication protected by the attorney-client privilege or constitutes work product.  If you do not expect such a communication please delete this message without reading it or any attachment and then notify the sender of this inadvertent delivery.

_______________________________________________

CLC-Discussion mailing list

CLC-Discussion at lists.flabarrpptl.org<mailto:CLC-Discussion at lists.flabarrpptl.org>

http://mailman.fsr.com/mailman/listinfo/clc-discussion

Confidentiality Notice: This communication is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521. It is legally privileged (including attachments) and is intended only for the use of the individual(s) or entity(ies) to which it is addressed. It may contain information that is confidential, proprietary, privileged, and/or exempt from disclosure under applicable law. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is strictly prohibited. If you have received this communication in error, please notify us so that we may take the appropriate action and avoid troubling you further. If you are not the intended recipient(s), please destroy this message, and any attachments, and notify the sender by return e-mail. Thank you for your cooperation.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150511/91661eed/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 42008 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150511/91661eed/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: imaged26635.PNG
Type: image/png
Size: 14014 bytes
Desc: imaged26635.PNG
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150511/91661eed/imaged26635.PNG>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image13794e.JPG
Type: image/jpeg
Size: 13495 bytes
Desc: image13794e.JPG
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150511/91661eed/image13794e.JPG>