Leonardo Ortiz has once again been named to the Florida Rising Stars list as one of the top up-and-coming lawyers in Florida for 2014. 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.

One of the most common calls I get are from owners asking what can they do if a contractor files a claim of lien on their property.  If the contractor is legitimately owed the money claimed in their lien I typically recommend that the owner contact the contractor to resolve the issue.  Of course, the more common scenario is where the owner believes the contractor is not entitled the amount listed in their lien because the contractor didn’t finish the job, the work wasn’t done properly, or the contractor’s bills were inflated.  In this situation, the owner does have various options depending on how aggressively they want to challenge the lien.

The first option is do nothing.  Some owners are surprised when I tell them they don’t have to do anything.  However, under Florida law the contractor has one year from the date the lien was recorded to file a lawsuit to enforce its lien.  If the contractor fails to file a lawsuit within one year the lien is null and void.  Therefore, unless the owner is planning to sell or transfer the property within the next year the owner does have the option of simply waiting to see if the contractor will file a lawsuit within the one year statute of limitations.  Of course, most owners want to take affirmative action to challenge a lien especially if they are confident the lien is invalid.

The owner can also file a notice of contest of lien.  A notice of contest of lien is a statutory form that shortens the statute of limitations from one year to sixty days.  The owner records the notice of contest of lien and the clerk’s office mails a copy of the notice to the contractor.  If the contractor fails to file a lawsuit within sixty days of the date the clerk’s office mailed the copy of the notice the lien is null and void.  This notice of contest of lien is an effective method of notifying the contractor you are challenging their lien without jumping right into litigation.

Finally, the most aggressive option when an owner receives a claim of lien is to file a show cause complaint.  This option is appealing to owners who want a prompt resolution and are confident there is a basis to challenge validity of the lien.  A show cause complaint is a lawsuit which requires the contractor to enforce its claim of lien within twenty days of service.  If the contractor does not file a counterclaim to enforce its claim of lien within twenty days the court should automatically discharge the claim of lien upon filing of a motion by owner.

Most people have heard the warning “be careful with what you put on social media”.  It is relatively well known that many businesses check an applicant’s social media pages as part of the application process.  Likewise, many colleges screen a student’s social media pages as part of the college application process.  However, most people are not aware of the fact that social media can also be used as evidence during a legal proceeding.  This issue recently came before the Second District Court of Appeal in Root v. Balfour Beatty Const. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014).

In Root the plaintiff filed suit for negligence against the City of Cape Coral and various contractors for damages suffered by Plaintiff’s three-year old son when he was struck by an oncoming vehicle in front of a construction site.  In her lawsuit the Plaintiff alleged the Defendants were negligent for failing to use reasonable care in maintaining the safety of the construction site for pedestrians.  Defendants filed a discovery request asking Plaintiff to produce copies of posting on her Facebook account relating to her relationship with her family, her son, and mental health issues.  The trial court entered an order requiring Plaintiff to produce copies of her Facebook postings.  On appeal, the Second District Court of Appeal reversed the trial court’s decision because the Facebook postings were irrelevant and did not pertain to the accident itself or any the defenses raised by the Defendants.

Although the Plaintiff in Root prevailed on appeal it is important to note that the appellate court specifically acknowledged that “trial courts around the country have repeatedly determined that social media evidence is discoverable”.  The same rule applies in Florida which means that as long as the social media evidence is relevant to the claims at issue in the litigation and admissible in court, or reasonably calculated to lead to evidence that is discoverable in court, it will be discoverable.

I have written about the importance of written contracts and specific contract terms in past blog posts.  It is equally important to remember that maintaining detailed records can sometimes be just as important as having a written contract in the first place.  Inevitably, issues come up during the course of most construction project or business transactions.  Whether you properly document your position when these issues arise may determine whether you win or lose at trial.

My last trial was a dispute between a homeowner and contractor on a residential project.  My client and the homeowner were the primary witnesses at trial and of course they had conflicting versions of what occurred during the course of the project.  I believe that one of the primary reasons we prevailed at trial was because my client kept meticulous records including emails, letters, and photographs, which supported his version of what occurred during the project.

Witness testimony is subject to bias and recollection of past events.  This is important because most trials take place several years after the dispute actually occurred.  This is why it is important to put everything in written form as soon as any dispute arises.  Historically, documentation meant sending a letter or a fax.  However, in today’s electronic age, emails and even text messages have become the preferred method of communication among many business professionals.  However you choose to communicate, the important thing is to clearly document your position in writing and maintain a file of these records in the event you are faced with the possibility of litigation.

One of most common questions I receive from owners who are in the middle of a construction project is what to do when you receive a notice to owner.  The first thing I always say is don’t panic the service of a notice to owner is a routine procedure and it doesn’t necessarily mean there are problems with your contractor.  Under Florida law, any party who does not have a direct contract with the owner is required to serve a notice to owner in order to preserve their lien rights.

The notice to owner is submitted by any subcontractor, sub-subcontractor, supplier, or material men notifying the owner that they are providing labor, services or materials on the construction project.  The notice to owner is sent by certified mail to the owner but it is not recorded and does not create any type of lien on the property.  The notice contains the following statutory warning:

IMPORTANT INFORMATION FOR YOUR PROTECTION

Under Florida’s laws, those who work on your property or provide materials and are not paid have a right to enforce their claim for payments against your property.  This claim is known as a construction lien.  If your contractor fails to pay sub-contractors or material suppliers or neglects to make other legally required payments, the people who are owned money may look to your property for payment for payment.  EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.

PROTECT YOURSELF

RECOGNIZE that this Notice to Owner may result in a lien against your property unless all those supplying a NOTICE to Owner have been paid.  LEARN more about construction lien law, Chapter 713, Part 1 Florida Statutes, and the meaning of this notice by contacting an attorney or the Florida Department of Business and Professional Regulation.

This statutory warning is usually what causes the owner to become alarmed.  However, this warning is actually designed to protect the owner by providing information about potential lienors.  The first thing you should do if you receive a notice to owner is to contact your contractor and confirm that the subcontractor that sent the notice is actually working on the project and confirm the status of any payments owed to the subcontractor.  Next, you should request that the contractor provide a written list of any other subcontractors, sub-subcontractors, suppliers, or materialmen that are working on the project.  Finally, and most important, under no circumstances should you make any further payments to the contractor until you have received a release from all subcontractor that sent a notice to owner.  If you do not obtain this release you face the possibility of a subcontractor placing a lien on your property because they were not paid by your contractor.  The subcontractor’s lien is valid even if you have paid your contractor in full.  Therefore, the only way to properly protect yourself from subcontractor liens is to obtain proper releases for every payment you make on the project.