As you can see from the new title
for our newsletter we are making some changes.
I am pleased and excited to announce that Joseph
V. McNabb has agreed to join with me to form Marlowe McNabb & Stayton, P.A.
Joe is joining us so that we can
continue to provide the kind of service our clients
deserve. With his help we will be able to respond
quickly to the needs of our clients even when
involved in trials or arbitration hearings. Prior
to agreeing to joining forces with us, Joe practiced
law at Carlton Fields, in the Construction Law
Department. While there, he represented general
contractors, subcontractors, architects and material
suppliers. I was fortunate to have the opportunity
to work closely with Joe during my time at Carlton
Fields.
Before becoming a lawyer, Joe spent
20 years in the United States Air Force where
he was a fighter pilot. His career included two
combat tours in Vietnam. Joe graduated from the
United States Air Force Academy with a bachelor
of science degree. In 1991, he graduated summa
cum laude, Order of the Coif, from Florida State
University College of Law where he was a member
of the Florida State University Law Review. While
at FSU, he received awards for academic excellence
in leal research and writing, torts, evidence,
remedies, Florida civil practice, and litigation.
He is a member of the American Bar
Association, The Florida Bar and the Hillsborough
County Bar Association. He is also admitted to
practice in the U. S. Court of Appeals, 11th Circuit,
and the U. S. District Court for the Middle District
of Florida. He serves on the Board of Trustees
for the Hillsborough Rural Community Development
Corporation.
For those of you who cannot understand
how I would associate with an FSU graduate, I
can only say that he had to be a damn fine lawyer
to get that passed me. After long and serious
negotiations, we have reached the most important
decision about the new practice. We are not allowed
to talk about Florida vs. FSU. Please join us
in welcoming Joe as a partner and a friend. Joe
and I will use a team approach to the practice
of law. Working together we will continue to provide
the quality of service our clients deserve. Please
stop by our newly expanded offices to say hello.
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The courts continue to reaffirm
the necessity for scrupulous compliance with the
Florida Lien Law. North American Specialty Insurance
Co. v. Hughes Supply, Inc., 705 So. 2d 616, (4th
DCA 1998) demonstrates the importance of knowing
not only whether a job is bonded, but the type
of bond. Even then, all may not be as it seems.
In this case, a payment bond was issued containing
the statement specified in Florida Statutes Section
713.245 for conditional payment bonds. That legend
makes it clear that the bond covers claims of
subcontractors and others only to the extent the
contractor has been paid for the work by the owner.
Where there is a conditional payment bond, a notice
to owner and a claim of lien must be filed to
preserve bond and lien rights. When the general
contractor and the owner agree that the work of
the particular subcontractor has been paid for,
the lien is transferred to the conditional payment
bond.
However, in this case, the conditional
payment statement appeared on the bond, but there
was no corresponding pay-when-paid language in
the subcontract. The Court held that despite the
existence of the conditional payment legend on
the bond, it was nothing more that a standard
payment bond. This was good news for the owner
and some of the claimants on the bond who had
provided proper notices.
However, for one subcontractor,
it was a disaster. The Court held that even if
the subcontractor had been fooled into thinking
that it was a conditional payment bond, that was
no excuse for failing to follow the different
notice requirements for a standard payment bond.
As a result, he lost his right to claim under
the bond.
This case reemphasizes the importance
of the initial notice which covers both the requirements
of a Notice to Owner and the requirements of a
Notice to Contractor. This should be sent to both
the owner and the contractor within 45 days of
commencing work or delivering materials to the
job site. This eliminates the need to know at
the beginning of the work whether it is a bonded
job or the type of bond.
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As
usual, the legislature tinkered with Section 255.05
and Chapter 713. Most of the changes were technical
in nature. A general contractor now has the same
opportunity to shorten the statute of limitations
on a payment bond that an owner has in connection
with a claim of lien. For a number of years, the
owner has been able to file a Notice of Contest
of Lien, which shortens the statute of limitations
for filing an action to enforce a lien from one
year to 60 days from the date of recording of
the notice. The general contractor can now shorten
the time to file a claim against a payment bond
by filing a new statutory form called a Notice
of Contest of Claim Against Payment Bond. A claimant
on the bond then has 60 days to file an action
to enforce the claim on the bond. Failure to file
the action will result in a loss of bond rights.
If you need additional information, please contact
our office and we will be happy to assist
you.
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