[RPPTL-constructionlaw] Lien issue with public entity

Tue Apr 17 05:23:23 PDT 2012

I fail to see how sovereign immunity applies at all in these cases (Glenn Falls), since the claim is based on contract, not on tort. In addition, that immunity is waived by statute up to $100,000/$200,000, so for those county-level contracts in which no bond is required under $200,000, the immunity may never apply anyway.

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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of kim.ashby at akerman.com
Sent: Monday, April 16, 2012 5:29 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] Lien issue with public entity

Glen Falls is actually the only true way past sovereign immunity because it was the Commissioners' surety which was the target and not the public servants.  Larry L disagrees with me.

Kimberly A. Ashby
Board Certified in Appellate Law and Construction Law
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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of fred.dudley at hklaw.com
Sent: Monday, April 16, 2012 5:25 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] Lien issue with public entity

You used to be able to sue the individual commissioners on their fidelity surety bonds, but those bonds may have been repealed. See: Glen Falls ex rel. Governor.

Frederick Dudley | Holland & Knight
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From: Gregory Johansen [mailto:gregoryjohansen at gjjlaw.com]
Sent: Monday, April 16, 2012 04:52 PM
To: 'RPPTL constructionlaw' <constructionlaw at lists.flabarrpptl.org>
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

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From: 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.

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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
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