[CLC-Discussion] 713.346: Time to let Owners in on the party?

Wed Oct 28 12:59:13 PDT 2020

100% agreed Peter.  Unfortunately, the vast majority of owners aren’t going to an attorney for help in advance, even during the week before Halloween, or if they do, they are going to the general practitioner that is reviewing contracts a little outside his/her lane that don’t know to add those protections.

As for Michael G’s previous comments about 713.345, I’ve had the same experience with the criminal statute.  I tend to think an owner remedy would fit better in 713.346 than 713.345 though, or in it’s own new statute within 713.

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Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
231 N. Woodland Blvd.
DeLand, FL 32720
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Offices In Daytona Beach and DeLand

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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: Wednesday, October 28, 2020 2:50 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

Presently my take away from this scenario is that when drafting a contract on behalf of an owner you should always include a specific payment indemnity with lots of scary seeming remedies.

Sincerely,

Peter B. Rowell
Board Certified Construction Attorney
The Law Office of Peter B. Rowell, P.A.
8950 S.W. 74th Court Suite 2201 A-71
Miami, Florida 33156
Phone: (305) 998-9657
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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
Sent: Wednesday, October 28, 2020 2:19 PM
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Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

I recently encountered this- the bad actor admitted they had been paid and did not pay my client -  I was shocked at the lack of causes of action to chase the money – yes , it’s a crime , but that does not really get the money back

Kevin J. Taylor, Esq.
Kevin J. Taylor, P.A.
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Suite 512
Fort Lauderdale, Florida 33304
954-530-0889

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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
Sent: Wednesday, October 28, 2020 2:04 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] 713.346: Time to let Owners in on the party?

It would be great to be able to plead the permissive inference in Fla. Stat. § 713.345(1)(c) and not try to “shoehorn” it into a cause of action. Can’t be the basis for a civil theft claim.

Thank you,
Jack
Jack Taylor, Esq.
Associate Attorney

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

Jack at WCLfirm.com<mailto:gtwlaw at ymail.com>
www.WCLFirm.com<http://www.wclfirm.com/>
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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] 713.346: Time to let Owners in on the party?

I agree with both of you but think  713.346  would be the better place to make the change.

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Edward J. Kinberg
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On Wed, Oct 28, 2020 at 1:27 PM RPPTL CLC-Discussion <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>> wrote:

I agree Robert. However, while we are on the subject, couldn’t a similar end be achieved by the Legislature creating a private civil cause of action under 713.345 which currently creates criminal liability for a contractor who misapplies construction funds?   Over the past few years, I have had instances on behalf of both Owner clients and subcontractor clients where a private cause of action under 713.345 for a statutory violation would have been most useful.   When a contractor receives funds from an owner and doesn’t pay subs and suppliers (with no good faith performance related basis to withhold payment), then both the owner and sub will be hurt.  It would be beneficial to see more civil teeth in the legislation.  I have gone the route of getting local law enforcement involved under 713.345 but it is a long and arduous process and very dependent on the quality and interest level of the agency having jurisdiction.

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
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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] 713.346: Time to let Owners in on the party?

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Can anyone think of a compelling reason why 713.346 should not be amended to add a statutory cause of action (with a right to prevailing party fees) for an Owner who is harmed by a lienor’s failure to pay a lower tier lienor?

And….. before anyone types it, yes, I know the owner should be getting all the proper releases in order to give themselves a proper payment defense but in my experience, far more than half of single family residential owners and most small commercial owners, do not get lien releases for progress payments or even final payments.  They usually do if a lender is involved, but not always.

[cid:image006.jpg at 01D6AD42.FFC27870]
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
231 N. Woodland Blvd.
DeLand, FL 32720
(P) 386-736-7700 | (F) 386-785-1549

Offices In Daytona Beach and DeLand

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