As you can see from the new title
for our newsletter we are making some changes.
I am pleased and excited to announce that Joe 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 join 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 past 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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We have a new address for our web
site. It can now be found at www.marlowefirm.com
(which you probably already know if you are reading
this). We are also updating the site. When finished,
you will be able to access the site and obtain
a variety of Florida Lien forms. These will be
available for download either as Word or WordPerfect
documents. The updating will be an ongoing process.
Call Connie and let her know of any resources
you would be interested in having on the site.
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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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