[RPPTL-constructionlaw] [RPPTL] -need a referral

Thu Sep 1 08:59:01 PDT 2011

Gary:

With your permission, here is my humble five cents:

Presuming that the complaint alleges something to the effect that “all
conditions precedent to bringing and maintaining the action have occurred,
been met, or were waived”, from a pleadings standpoint it should survive
dismissal if the defense has raised  the failure of plaintiff to fulfill
that particular condition precedent by motion to dismiss.  Satisfaction of
conditions precedent need only be alleged “generally”, while a denial of
that some particular condition was not satisfied must be stated “with
specificity and particularity”  (R. 1.120(c).   The defense argument that a
particular condition has not been satisfied is not a basis for dismissal of
the complaint by motion to dismiss because the general allegation of
satisfaction is sufficient for the pleading to state a cause.  The defense
would have to “deny” that general allegation, and assert by affirmative
defense facts sufficient to show the failure “with specificity and
particularity”.  The court can’t look at affirmative defenses outside the
otherwise sufficient complaint when considering a motion to dismiss. 

Presuming thereafter that the defense did prudently raise that issue by
sufficient allegations in a responsive pleading, you would have to file a
reply to the defense alleging sufficient facts to avoid that defense (or
face waiver).  If you cannot in good faith allege sufficient facts to avoid
that defense, it becomes a judgment on the pleadings or summary judgment
issue.  If the issue is resolved on that basis, obviously it is on the
merits and with prejudice.  A.k.a., the plaintiff is done.

The point of the foregoing (overly wordy) exercise is, in my view, if your
client has prematurely filed a pleading without complying with condition and
the defense is just raising failure of a condition by motion to dismiss, it
is not sufficient to get it dismissed, but you may want to take one of your
free ‘”voluntary dismissals without prejudice” to avoid the possibility that
the issue will become framed for adjudication on the merits and the
plaintiff is done.  

Because compliance with contractual conditions do not raise “jurisdictional”
issues (like the failure to timely serve contractor’s final affidavit five
days before filing a lien foreclosure), the Court might grant a stay on
motion by you, or even better, if you have a reasonable opponent that
understands that you are just “temporarily dismissing” to oblige the
condition, they may agree it is more convenient to agree to a stipulated
stay.  If you dismiss and refile your client would have to satisfy the
defense taxable costs (by Rule), but if there is a stay, the prevailing
party gets costs at the end of the day anyway.

Lastly with my apologies, are the facts such that if the defense asserts the
failure of condition by defense, you could reply (and prove) that pursuing
the condition would have been a futile act?

Gregory T. Elliott

ELLIOTT - BERGER, P. A.

10225 Ulmerton Road, Suite 4A

Largo, Florida  33771

(727) 360-2600  (Phone)

(727) 360-6588  (Fax)

 Construction Law

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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Gary L.
Brown
Sent: Thursday, September 01, 2011 10:58 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL] -need a referral

How about a Cane?!  Lol

On a different topic, can anyone advise whether you’ve litigated the issue
of a pre-suit condition precedent (not mediation, but submission of claim to
design professional of record and getting decision or lack thereof w/in
certain time period) that was not satisfied before suit was filed, and
whether that’s fatal to the claim? Or whether dismissal/judgment would be
w/o prejudice for the party to 1st comply with the requirement and re-file
(assuming still w/in statute of limitations).  My hunch is it’s the latter.
Anyone’s guidance or reference to precedent would be appreciated.   Please
just email your response to gbrown at wsh-law.com.  Thx.   

  <http://www.wsh-law.com/Includes/Templates/Active/images/h-logo.gif>
Gary L. Brown, Esq.
    Partner
    Board Certified Construction Lawyer
    Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.
    200 East Broward Blvd., Suite 1900
    Fort Lauderdale, FL 33301
    www.wsh-law.com <http://www.wsh-law.com/> 
    Tel: (954) 763-4242
    Fax: (954) 764-7770

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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Ian
Kravitz
Sent: Thursday, September 01, 2011 8:57 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL] -need a referral

Don’t know if I would have a Gator defending my Nole kid 

Ian T. Kravitz, Esquire   view my bio
<http://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml> 

Board Certified in Construction Law

AV Preeminent Rated by Martindale-Hubbell

MALKA & KRAVITZ, P.A.

1300 Sawgrass Corporate Parkway

Suite 100

Sunrise, FL 33323

Telephone 954-514-0984

Facsimile  954-514-0985

www.YourConstructionLawFirm.com <http://www.mkpalaw.com/> 

AAA AVRated

webCertification Logo - Construction

                            Your Construction Law Firm™

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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Mike
Wilson
Sent: Thursday, September 01, 2011 8:22 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL] -need a referral

Tim Jansen is the best in Tallahassee and was my college roommate at UF. His
number is 850 545-9189. Tell him I referred you and he will take care of it.
Mike

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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
mromm at rommlaw.com
Sent: Thursday, September 01, 2011 4:11 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL] -need a referral

Hi everyone.....bad news. My nephew was arrested in Tallahassee. He is
student in his first week at college at FSU (false ID/poss. alcohol) - kid
stuff!   Anybody have a GOOD FRIEND who can handle a criminal case for me?
He's a good boy, who made a bad choice.  Please call me privately at
954-557-8002 if you have a referral for me. Thanks!!! Michael

Michael Romm

Michael R. Romm, P.A.

North Office: 1213 S. 30th Avenue, Suite 2, Hollywood, FL 33020

South Office: 6505 Blue Lagoon Drive, Suite 460, Miami, FL 33126

Cell Phone: (954) 557-8002

Office Phone: (305) 260-1600

Fax #1:  (954) 208-0022

Fax #2:  (888) 622-3035

mromm at rommlaw.com

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-------- Original Message --------
Subject: Re: [RPPTL-constructionlaw] Sarasota County building
envelope/waterintrusion expert
From: "Chris Lamia" <clamia at bmolaw.com>
Date: Wed, August 31, 2011 10:43 pm
To: <constructionlaw at lists.flabarrpptl.org>

David Karins, PE. Karins Engineering Group. 
Christine E. Lamia 
Bryant Miller Olive 
101 North Monroe Street 
Suite 900 
Tallahassee, Florida 
(850) 222-8611 (office) 
(850) 222-8969 (fax) 
(850) 728-4034 (cell)

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From: constructionlaw-bounces at lists.flabarrpptl.org
<constructionlaw-bounces at lists.flabarrpptl.org> 
To: RPPTL constructionlaw <constructionlaw at lists.flabarrpptl.org> 
Sent: Wed Aug 31 15:10:21 2011
Subject: [RPPTL-constructionlaw] Sarasota County building
envelope/waterintrusion expert 

Hi all:

I'm looking for a building envelope/water intrusion expert in Sarasota
County.  Thank you in advance for your referrals, please send contact info
and any helpful info directly to me at pgoggins at gmail.com.

PG

-- 
Patrick J. Goggins, PA
Sun Trust Building, Suite 850
777 Brickell Avenue
Miami, FL 33131-2811
Tel:  305/530-8500 <tel:305%2F530-8500> 
Fax: 305/530-8557 <tel:305%2F530-8557> 
pgoggins at gmail.com

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