[RPPTL-constructionlaw] Timeliness of Amended Claim of Lien

[Larry Leiby]

Krista,

I don't think that you are crazy, but I think that the trial court was correct.  In Hayutin the amended claim of lien was recorded more than 90 days after the date of last work recited in the amended claim of lien.

You still may be able to argue that you are prejudiced by the amendment, if you can prove any prejudice.  The lienor must still prove that it worked up to the date alleged in the amended claim of lien, which work was not warranty work.

Suggestion:  When you ask a question like this you should include your personal e-mail address so that responses need not go to all members of the committee.


Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985

e-mail:  leiby at mkpalaw.com

Board Certified in Construction Law
Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators


From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Krista Brindle
Sent: Monday, August 08, 2011 5:14 PM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] Timeliness of Amended Claim of Lien

Hi all,

I got a bad ruling this afternoon and I was wondering if any of you know of some awesome caselaw that is on point off the top of your head...here's the facts:

Plaintiff filed Claim of Lien on May 28, 2009, alleging the last work was done on March 4, 2009.
Plaintiff filed an Amended Claim of Lien on April 7, 2010, alleging the last work was done on March 2, 2010, but specifically stating that it was being filed to amend the claim of lien from '09.
Plaintiff filed suit to foreclose the Amended Claim of Lien on March 30, 2011.
We filed a Motion to Dismiss for the Defendant, stating that the Amended Claim of Lien was way too late, pursuant to §713.08(4)(b) and the case of Hayutin v. Cochran Const. Co., Inc.
The Judge denied the Motion to Dismiss stating that since the Plaintiff was amending the last date of work performed, and since the amended claim of lien was filed within 90 days of that new date, then it was timely.

This seems to completely gut the statute and goes against the whole "strictly construed creature of statute" claim of lien law that I had learned.  Am I crazy and the Judge is right or is she off base and I should be filing a Motion for Rehearing as soon as I can?

Thanks in advance for all your help, all you wonderful brilliant people!



Krista L. Brindle, Esq.
Andrew S. Epstein, P.A.
2120 McGregor Boulevard
Fort Myers, Florida 33901
Telephone: (239) 791-LAWS (5297)
Facsimile: (239) 791-0100

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