Author Archives: Leonardo Ortiz

I am excited to be the featured speaker at the Noon Leads Group meeting on January 19, 2016 at the Greater Hollywood Chamber of Commerce. My presentation will provide a basic overview of Florida lien law.

The Hollywood Chamber of Commerce has three Leads Groups that are dedicated to developing strong business relationships among chamber members; the groups are comprised of only one representative from a specific business category, thereby ensuring that no competition exists for business leads within the groups.

The Noon Leads Group meets every Tuesday at noon and most meetings feature a guest speaker whom provides lunch for the group. Visit our Facebook for information on future meetings.

https://www.facebook.com/NoonLeadsGroup

The People’s Court has been airing for over 30 years and for most people it is their only exposure to Small Claims Court. In Florida, Small Claims Court includes all claims up to $5,000 and in most cases the parties represent themselves in Court. The right to represent yourself includes corporations which are required under Florida law to be represented by counsel for all claims exceeding $5,000.

In Small Claims Court there is typically a Pretrial Conference which is generally held within sixty days of the lawsuit being filed. The Pretrial Conference is generally held a courtroom and is generally crowded as the Judge may preside over as many as fifty cases at one Pretrial Conference. Once your case is called on the docket, the first thing the Judge does is order the parties to attend non-binding mediation in a separate room with a state certified mediator. The mediation conference is non-binding which means the mediator is not making any decisions about the facts or the law and the parties are not required to settle the case. If the parties cannot reach a settlement, the parties then go back to the Courtroom where the Judge may ask for a brief statement of the case prior to scheduling the case for trial.

The trial is generally held within sixty to ninety days after the Pretrial Conference. At trial each side has the opportunity to present documentary evidence and testimony to support their case. Small claims trials are more informal than typical trials and may even be conducted in the judge’s chambers rather a courtroom. The judge will typically ask their own questions to the parties and any witnesses during the trial and typically the judge issues a final judgment at the conclusion of the trial. If a Final Judgment is entered in favor of the plaintiff the judge will advise the Defendant that they could be subject to garnishment or other collection procedures if they fail to pay off the Final Judgment.

It may not always be financially feasible for a party to hire an attorney for a case in Small Claims Court. However, one thing I have been preaching to clients who are dealing with Small Claims Court on their own is to at minimum discuss everything with an attorney. This is especially true if you are the Defendant whom is being sued in Smalls Claim Court. A failure to understand the process could result in a judgment that you are financially responsible to satisfy.

Florida Statute Section 95.031(2)(b) provides a twelve-year statute of repose for products liability claims based upon injuries or death caused by a product with an expected useful life of ten years of less. Improvements to real property constitute an exception to the twelve-year statute of repose under Section 95.031(2)(b)1. In Dominguez v. Hayward Indus., 40 Fla. L. Weekly D 2159 (Fla. Dist. Ct. App. 3d Dist. Sept. 16, 2015) the Third District Court of Appeal addressed whether a pool filter was an improvement to real property within meaning of Section 95.031(2)(b)1.

In 2012, the homeowner suffered a severe head injury when the filter of his swimming pool exploded. The homeowner sued several parties including the manufacturer and distributor of the pool filter. It was undisputed that the delivery and installation of the pool and filter was completed on December 20, 1999. The defendants argued that the homeowner’s claim was barred by the twelve-year statue of repose for products liability claims under Section 95.031(2)(b). The homeowner argued that the pool filter was an improvement to real property and therefore fell within the exception to the statue of repose under Section 95.031(2)(b)1.

The homeowner appealed the trial court’s final summary judgment ruling in favor of defendants. On appeal, the Third District Court of Appeal noted that the term “improvements to real property” is undefined in Section 95.031(2)(b)1. However, the Florida Supreme Court has previously defined “improvement” as a valuable addition made to property, amounting to more than mere repairs or replacement of waste, costing labor or capital and intended to enhance its value. The Third District Court of Appeal added that Florida law supports the proposition that a product maintains its fundamental characteristics when it is connected to real property. Based on these findings, the Third District Court of Appeal affirmed the trial court’s ruling and held that a pool filter is a component part of the swimming pool an does not constitute an improvement to real property under Section 95.031.

The following is a basic guideline of the necessary steps to preserving a party’s lien rights in Florida:

• Notice of Commencement

If you are working directly for the Owner then you should ensure that the Owner signs and records a Notice of Commencement for the Project. If you are a subcontractor or supplier working on the Project you should request a copy of the Notice of Commencement from the General Contractor. The Notice of Commencement should include all the information necessary to properly prepare a Notice to Owner (if required) and the Claim of Lien.

• Notice to Owner

Any party that is not working directly for the Owner is required to serve a Notice to Owner within 45 days of first furnishing labor or materials. You should serve a copy of the Notice to Owner on every party between you and the Owner.

• Record Claim of Lien

The Claim of Lien must be recorded in the County where the project is located within 90 days from last date of work required under your contract. Warranty or corrective work does not extend your last date of work. The lien should include the total value of work that you completed under your contract including approved change order. You should not include finance charges, legal & recording fees, or other charges that do not benefit the property. The Owner must be served with a copy of the lien within 15 days of recording.

• Final Contractor’s Affidavit

Any contractor working directly for the Owner is required to serve a Final Contractor’s Affidavit at least 5 days prior to filing a lawsuit to enforce its Claim of Lien.

• File Lawsuit to Enforce Claim of Lien

The final step in preserving your lien rights is to file a lawsuit to enforce the Claim of Lien. The lawsuit must be filed within 1 year from the date the claim of lien was recorded unless a notice of contest of lien is filed or the lienor is served with a show cause complaint. If the lienor receives a notice of contest of lien they have 60 days from the date the clerk’s office certified it mailed the notice of contest to file a lawsuit to enforce its claim of lien. If a lienor is a served with a show cause complaint they must file a counterclaim to enforce its claim of lien within 20 days after service of the summons.

Leonardo Ortiz has once again been named to the Florida Rising Stars list in Construction Litigation in Florida for 2015. Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection for this respected list is made by the research team at Super Lawyers.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Rising Stars list are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. For more information about Super Lawyers, go to superlawyers.com.