[CLC-Discussion] MTC 558.004(15) document request denied

Tue Oct 20 15:17:53 PDT 2020

I concur that courts read into he disclosure provision the right of counsel to object or withhold on the basis of work product, etc.  Judicial activism is the real problem.  Strict construction of the statute would often lead to harsh results for one side, and too many judges feel the courts should not be forced to dispose of cases or limit evidence because of some statutory roadblock.

Consider this example.  Owner files suit for construction defects.  Before filing suit owner makes all repairs.  Contractor is completely unaware of the existence of any problem since owner never informed contractor via 558 notice or otherwise.  The failure of owner to send a 558 is raised by contractor.  Owner sends a 558.  At that point the alleged defect was already rectified by owner and the contractor was deprived of an opportunity to inspect (since evidence of the defect is gone).  Owner has expert reports and contractor has nothing.  The contractor was also deprived of an opportunity to cure because the owner already resolved the alleged defect.  Outcome.  Court will not limit owner’s evidence as required by 558 and and finds that 558 notice was sufficient and allows case to proceed.  This scenario is regularly playing out in construction defect cases brought via insurer (owner policy) subrogation.

The statute’s teeth need to be sharpened so it is clear what the penalty is and that the court’s must enforce it.

Justin R. Zinzow
Admitted to Practice Florida & Texas
AV Preeminent® Rated Attorney
Fla. Board Certified in Construction Law

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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Tuesday, October 20, 2020 5:27 PM
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Subject: Re: [CLC-Discussion] MTC 558.004(15) document request denied

558 enforcement is definitely one sided towards the contractor:

  1.  Their insurer has a duty to defend.
  2.  The owner has to conduct a thorough inspection for defects which they can ignore.
  3.   If there is no 558 Notice of Claim, the court will order a stay in the middle of litigation until the owner complies.
Now this.

Talk about limiting access to the courts.

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave
Longwood, FL 32750
Telephone: 407-926-4100

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From: Paul Kelly <pkelly at paulkellypa.com<mailto:pkelly at paulkellypa.com>>
Sent: Tuesday, October 20, 2020 5:08 PM
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Cc: 'Brian Tannenbaum' <btannenbaum at tannenbaumscro.com<mailto:btannenbaum at tannenbaumscro.com>>; 'Salvatore Scro' <sscro at tannenbaumscro.com<mailto:sscro at tannenbaumscro.com>>
Subject: RE: [CLC-Discussion] MTC 558.004(15) document request denied

Three thoughts:

  1.  Civil Procedure seems to be more of a general/broad use for discovery, as opposed to this particular statute that specifically calls for discovery under certain conditions, so it seems like the statute should control
  2.  The wording of the judge’s order seems to only address that discovery can be made through civil procedure, but the statute calls for sanctions. 558 should function to avoid (excessive) litigation and making a request for discovery per 558 fits this objective
  3.  Perhaps a 57.105 motion should have been made specifically citing non-compliance with 558

Paul J. Kelly
Paul J. Kelly, P.A.
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St. Petersburg, Florida 33713

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
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Subject: Re: [CLC-Discussion] MTC 558.004(15) document request denied

Another reminder of how 558 is a real beauty.

Frederick C. Barnes, Esq.
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
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Subject: Re: [CLC-Discussion] MTC 558.004(15) document request denied

Agreed and with the 30 day time limit it imposes an obligation and undue burden on contractors to essentially produce their file regardless of whether the 558 has merit or not and most times prior to a response even being due.

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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 RPPTL CLC-Discussion
Sent: Tuesday, October 20, 2020 3:57 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>; Jack at WCLfirm.com<mailto:Jack at WCLfirm.com>
Cc: Brian Tannenbaum; Salvatore Scro
Subject: [CLC-Discussion] MTC 558.004(15) document request denied

This result is how I would expect most circuit judges to respond to such a motion.  This section of the statute as originally conceived was arguably a legislative intrusion into the judicial process.  I can’t think of any other situation where a judge would be asked to sanction a party for pre-litigation discovery non-compliance, especially where the contractor is not obliged under the statute to even make an offer.  What if the production response was late or merely incomplete?  What if there were objections to the discovery?  This brings about a whole layer of dispute which I can understand judges not being inclined to deal with.

Alan E. Tannenbaum
Board Certified Construction Lawyer
TANNENBAUM SCRO LEMOLE & KLEINBERG
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
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Subject: [CLC-Discussion] MTC 558.004(15) document request denied

Good morning all,
We are representing a homeowner in a defect case. I just received an unexpected result on a Motion to Compel Documents requested under Section 558.004(15), Florida Statutes and for the cost of the motion..

At hearing there was no argument that the contractor was in violation of the section. The judge read to him the part of the motion that said :
“Section 558.004 provides that “any party who failed to provide the requested materials shall be subject to such sanctions as the court may impose for a discovery violation.” Fla. Stat. § 558.004(15).”

He asked him why he shouldn’t award sanctions. Opposing counsel agreed that was the law but argued that now that litigation had begun the request should have been re-submitted under the rules of civil procedure.  I argued against that obviously because the wording and the intent of the statute are clear and the contractor had admitted non-compliance. ,  The judge reserved ruling and came back with a denial with the order stating :  “The Plaintiff may seek discovery using the Rules of Civil Procedure. “

This was in Orange County. Any thoughts?

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

Williams Law Firm
212 W. Bay Ave
Longwood, FL 32750
Telephone: 407-926-4100

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