[RPPTL-constructionlaw] Lien issue with public entity

Mon Apr 16 16:05:56 PDT 2012

George-

Was there something you thought I might be able to respond to? As an aside, what bond conditions do you think are appropriate at first appearance on a dealing in stolen property charge? We are trying to hash this out with the Chief Judge and are advocating 5k versus 15k. Let me know.

Morris

From: George "Trey" Tate, III [mailto:gtate at broadandcassel.com]
Sent: Monday, April 16, 2012 06:23 PM
To: RPPTL constructionlaw <constructionlaw at lists.flabarrpptl.org>
Subject: Re: [RPPTL-constructionlaw] Lien issue with public entity

Sent from my iPhone

On Apr 16, 2012, at 5:56 PM, "Larry Leiby" <Leiby at mkpalaw.com<mailto:Leiby at mkpalaw.com>> wrote:

As an interesting back story to the below case if you read it, you can see where the school board attorney tried to throw my client, Mr. Electric,  under the bus and claim that it waived its claim while Mr. Electric was not a party to the Trane case.  That was not true and we (Mr. Electric)  recovered against the School Board in a separate case on a Palm Beach County v Trinity Industries theory, which was the basis for upholding the Mr. Electric recovery on appeal (despite the Glenn Falls sovereign immunity argument)..  See 949 So.2d 353 (which is the correct cite this time.)  The case just confirms the back story as it is a PCA affirmed.  Otherwise please step away, there is nothing else to see there.

 I can’t think of disagreeing with the talented Ms. Ashby, but the result is the result.

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<mailto:leiby at mkpalaw.com>

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Lohrer, Edward
Sent: Monday, April 16, 2012 5:02 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien issue with public entity

If there are retainage funds (which there should be) you can impose an equitable lien against them. Sovereign immunity is not a defense if there was no bond in place.

See School Board of Broward County v. Trane, Co., 840 So. 2d 1095, 1097 (Fla. 4th DCA 2003)

[Becker & Poliakoff]

Edward C. Lohrer
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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Gregory Johansen
Sent: Monday, April 16, 2012 4:53 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Lien issue with public entity
It’s a given that you can’t lien public property under Chapter 713 and that the public entity should require a payment bond but what if the public entity either 1 doesn’t require a bond for the work because it’s too small a job or 2 doesn’t require a bond even if the project should have a bond?  Can sovereign immunity be waived? What’s the best practice to preserve subcontractor’s rights and pursue the claim?

Thanks in advance.

Greg

Gregory J. Johansen
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Orlando FL 32814

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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Steve Thompson
Sent: Friday, April 13, 2012 4:07 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Bond claim issue

Yes, but 255.05(2)(b) provides the form for a release of bond claim and 255.05(2)(f) provides:

A waiver that is not substantially similar to the forms in this subsection is enforceable in accordance with its terms.

I would argue that a release is a relinquishment of a known right and that a release of lien claims (which are non-existent because of governmental exemption from liens) is ineffective to waive the right to claim against the 255.05 bond.

Steven F. Thompson, Esq.
Thompson & Brooks
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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Friday, April 13, 2012 3:06 PM
To: constructionlaw at lists.flabarrpptl.org<mailto:constructionlaw at lists.flabarrpptl.org>
Subject: Re: [RPPTL-constructionlaw] Bond claim issue
There is a statute on point.

Barry Kalmanson
bkpa1 at aol.com<mailto:bkpa1 at aol.com>

-----Original Message-----
From: Reese J. Henderson, Jr. <Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>>
To: RPPTL constructionlaw <constructionlaw at lists.flabarrpptl.org<mailto:constructionlaw at lists.flabarrpptl.org>>
Sent: Fri, Apr 13, 2012 2:29 pm
Subject: Re: [RPPTL-constructionlaw] Bond claim issue
Larry Leiby will have the site at his fingertips, but there is caselaw that says lien waivers are enforceable to waive rights against a payment bond.

Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>
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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Glenn T. Williams
Sent: Friday, April 13, 2012 2:18 PM
To: constructionlaw at lists.flabarrpptl.org<mailto:constructionlaw at lists.flabarrpptl.org>
Subject: [RPPTL-constructionlaw] Bond claim issue
Any help with the following would be very appreciated:

Subcontractor signs progress payment release of lien rights in the form of Section 713.20(4) (after supplying all materials and performing all work).  It’s a government project, there are no lien rights.  Same Subcontractor has a bond claim for amounts unpaid (there is both a Section 255.05 bond and a subcontractor common law bond potentially applicable).  Is the progress payment release of lien enforceable against Subcontractor to prevent Subcontractor from getting paid the unpaid subcontract amounts?

Thank you very much for your time, and I truly appreciate any help!

Glenn Todd Williams, Esq.
Attorney | Board Certified in Construction Law

Glenn Williams, P.A.
Angebilt Building - Downtown 37 N. Orange Ave, Suite 500
Orlando, Florida 32801
Telephone: 407-926-4100
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