[RPPTL-constructionlaw] Notice of Contest of Lien issue

Fri Aug 19 15:13:18 PDT 2011

Thank you to everyone for your insight.

Justin R. Zinzow | Zinzow Law
Board Certified Construction Specialist
35111 U.S. Highway 19 N.
Suite 302
Palm Harbor, FL 34684
Ph: (727) 787-3121
Fax: (727) 787-3231
Website | Bio

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-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Chris Lamia
Sent: Wednesday, August 17, 2011 6:31 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Notice of Contest of Lien issue

The question of whether or not the Defendant would have to prove the
lien invalid is a good one.  See Thornber v. City of Fort Walton Beach,
568 So.2d 914, 919 (Fla. 1990); Stuart Plaza V. Atlantic Coast
Development, 493 So.2d 1138 (Fla. 4th DCA 1986); and Nukote Intern. V.
Office Depot, 2010 WL 4942851 (SD Fla). The case law is all over the
place and not yet settled, as far as I know.  This is a good issue for a
law school exam.

Christine E. Lamia
Litigation Practice Group
Board Certified in Construction Law
    Bryant
     Miller
      Olive
101 North Monroe St. Suite 900 
Tallahassee, FL 32301 
(850) 222-8611
(850) 222-8969 (Fax)
clamia at bmolaw.com

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-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
fred.dudley at hklaw.com
Sent: Wednesday, August 17, 2011 3:51 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] Notice of Contest of Lien issue

I agree, but would add that the court MAY still have jurisdiction to
adjudicate your motion for fees (and to declare the lien invalid, since
that finding would be first necessary to reflect your client's status as
the "prevailing  party."

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone
850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley at hklaw.com | www.hklaw.com

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Chris Lamia
Sent: Wednesday, August 17, 2011 1:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Notice of Contest of Lien issue

When does the one year run to file?  It may be more cost effective to
let it run.  Lienor would have to refile under both scenarios: either
refile or file within 60 days of Notice of Contest.  Also, if your
client has a direct contract with lienor with a prevailing party fee
provision, I believe you can get fees for the voluntary dismissal,
without the need to pursue it under the lien statute (i.e. regardless of
whether lienor refiles).  Finally, your client still has a statutory
fraudulent lien claim and slander of title claim against the lienor.

Christine E. Lamia
Litigation Practice Group
Board Certified in Construction Law
    Bryant
     Miller
      Olive
101 North Monroe St. Suite 900
Tallahassee, FL 32301
(850) 222-8611
(850) 222-8969 (Fax)
clamia at bmolaw.com

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 or written to be
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-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Justin Zinzow
Sent: Wednesday, August 17, 2011 10:44 AM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] Notice of Contest of Lien issue

I would appreciate any feedback any members of the committee have the
time or inclination to provide on the following:

A construction lien was timely recorded and a lawsuit was timely filed.
However, just prior to a 57.105 hearing as to the frivolity of the lien
and foreclosure action, the lienor (through counsel) voluntarily
dismissed the lawsuit without prejudice.  The lien was never released
and demands for release have gone unanswered.

The propery owner would like to clear the lien as quickly and cheaply as
possible.  Would a notice of contest of lien, if recorded now, be
effective to terminate the lien if a new lawsuit is not filed (or the
old one re-opened) within 60 days?

Justin R. Zinzow | Zinzow Law
Board Certified Construction Specialist
35111 U.S. Highway 19 N.
Suite 302
Palm Harbor, FL 34684
Ph: (727) 787-3121
Fax: (727) 787-3231
Website | Bio

NOTICE: This e-mail message and any attachment to this e-mail message
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it. If you have received this e-mail in error, please notify us
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tax matters made herein, including any attachments, are not formal tax
opinions by this firm, cannot be relied upon or used by any person to
avoid tax penalties, are not intended to be advice to avoid tax laws or
penalties, and are not intended to be used or referred to in any
marketi!
 ng or promotional materials.

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