[RPPTL-constructionlaw] Timeliness of Amended Claim of Lien

[Weintraub, Lee]

Assuming the lienor actually returned to the project to do more work under the original direct contract, the amended lien is timely and proper.  If, on the other hand, the new last day of work was just 5 minutes to tighten a screw, then you have an argument.  In that case, however, it's likely summary judgment material, rather than dismissal.


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Lee A. Weintraub
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
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LWeintraub at becker-poliakoff.com 
http://www.becker-poliakoff.com


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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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