Kimberly Ashby

Partner

Overview

Kim Ashby is a partner and litigation lawyer with Foley & Lardner LLP. She represents developers, contractors, and governmental entities on a range of complex litigation matters, including lenders and special servicers in CMBS foreclosures and workouts.

Representative Experience

Kim has handled more than 100 appeals in Florida’s Fifth District Court of Appeal. Representative cases include: 

  • Affirmation of the appointment of a receiver in a CMBS foreclosure based on the record which showed the value of the property did not exceed the debt; the property was cash flowing; and the cash was secured personally being dissipated during the action. Reema Hospitality v. MSCI 2007-IQ13 Dike Road, LLC, ---- So. 3d --- 2014 WL 258642 (Fla. 5th DCA 2014) 
  • 7-0 decision to affirm the 5th District Court of Appeal on all issues, including the legal holding that “in peri delicto” did not apply to negate the effect of section 489.128, Florida Statutes, which renders void any contract which is performed by an unlicensed contractor when a contracting license is required for the scope of work. Earth Trades, Inc. v. T&G Corporation, ---- So. 3d -----(Fla. 2014) 
  • Currently representing Crum & Forster Specialty Insurance Co. to certify the following question before the Florida Supreme Court: “Is the notice and repair process set forth in chapter 558 of the Florida Statutes a ‘suit’ within the meaning of the CGL policies issued by C&F to ACI?” The Court will consider whether a CGL insurer owes a duty to defend for the pre-suit repair and cure process that must precede a suit brought in Florida for damages as a result of alleged construction defects. Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Co., (pending in the Florida Supreme Court on certified question form the 11th Circuit Court of Appeal) 
  • Represented Appellants Bankers Trust Company and Lennar Partners, Inc. on the appeal of judgments for lender liability predicated on alleged oral agreements with the principal of the borrower. Bankers Trust Co. v. Basciano, 960 So. 2d 773 (Fla. 5th DCA 2007) 
  • Represented the Authority as petitioner for a writ of common law certiorari to review an injunction against the use of all traffic infraction remedies as a result of the breach of the transponder agreements for all toll roads in Seminole County. Orlando-Orange County Expressway Authority v. Baird, So. 2d (Fla. 5th DCA 2008) 
  • Represented health care faculty in appeal of judgment, predicated on administration of TPA therapy. St Joseph's Hospital v. Cox, 14 So. 3d 1124 (Fla. 2d DCA 2009) 
  • Represented Appellant on a $2.5 million judgment rendered against client on lost profits issue. Network Publications v. Bjorkman, 756 So. 2d 1028 (Fla. 5th DCA 2000) 
  • Represented developer in construction lien disputes. Wolf Creek Land Co. v. Masterpiece Homes, Inc., 942 So. 2d 995 (Fla. 5th DCA 2006) 
  • Represented RV manufacturer in defect litigation. Coberley v. ThorIndustries, Inc., 908 So. 2d 486 (Fla. 5th DCA 2005) 
  • Represented Respondent on review of conflict certiorari that addressed attorney's fee awards in surety bond claims. Hubbel v. Aetna Casualty & Surety Co., No. SC92532 & SC922848 (Fla. 2000) 
  • Represented Appellee in the first conditional payment bond case. North American Specialty Insurance Co. v. Hughes Supply, Inc., 705 So. 2d 616 (Fla. 4th DCA 1998) 
  • Represented Appellant on review of non-compete clause for client. Lotenfoe v. Pahk, 747 So. 2d 422 (Fla. 2d DCA 1999) 
  • Represented Appellant in review of construction conditional payment bond issue. WMS Construction, Inc. v. Palm Springs Miles Assoc., Ltd, 762 So. 2d 973 (Fla. 3d DCA 2000) 
  • Represented Orange County as client on tax exemption issue. Trinity Temple Church of God in Christ v. Orange County, 681 So. 2d 765 (Fla. 5th DCA 1996) 
  • Represented ground lessee tenant of Winter Park Mall on issue of capitalization caps under 99 year ground lease. Orlando Regional Center Assoc. v. Ivey Properties, Inc., 622 So. 2d 1094 (Fla. 5th DCA 1993)

Recognition 

  • Listed in Who’s Who Legal for Construction in 2017
  • The Best Lawyers in America (2016-2018), listed as “Lawyer of the Year” for Appellate Practice in Orlando 
  • The Best Lawyers in America 2006-2016 and 2018-2019, listed in Florida for Appellate Practice, Construction Law, and Litigation -Construction 
  • Chambers USA 2004-2019, ranked in Florida for Construction 
  • Super Lawyers 2006-2017, listed in Florida for Construction Litigation, Appellate, and Business Litigation 
  • Super Lawyers 2006, 2011-2016, listed in Florida as a “Top 50 Women Lawyer”
  • Super Lawyers 2013, 2016, listed in Florida as one of the “Top 100 Lawyers” 
  • Justice Harry Lee Anstead Award, The Florida Bar Board Certified Lawyer of the Year, 2013 
  • The Legal 500 2012, 2014, recommended for Real Estate & Construction - Construction 
  • Florida Trend's Legal Elite 2006-2012, 2016, listed for Construction 
  • The Best Lawyers in America 2011, listed as “Lawyer of the Year” for Construction Law in Orlando 
  • Florida Trend's Legal Elite 2009-2011, listed for Appellate Practice 
  • The International Who's Who of Business Lawyers 2006-2011, recommended for Construction 
  • The Florida Bar Construction Law Committee 2010, Lifetime Achievement Award 
  • Orlando Magazine 2015, listed in “Best Lawyers” 
  • Orlando Business Journal 1998, “Top 5 Women In Construction Litigation” 
  • Orlando Business Journal 1996, Recognized as one of the “40 Under 40” 
  • Martindale-Hubbell, AV Rated

Publications and Presentations

Kim is a frequent lecturer and author on topics relating to appellate practice, construction, and business litigation. Her selected lectures and publications include: 

  • Speaker, “Construction Law Overview and Update: 558 Pre-Suit Notice,” The Seminar Group, May 2019
  • Featured, "If you build it … Kimberly Ashby just might be your attorney," 2017 Florida Super Lawyers, June 2017
  • Speaker, “Proceedings Supplementary and Post-Judgment Issues” Florida Conference of Circuit Judges, August 4, 2015 
  • Speaker, “Preservation of Error on Appeal,” Florida Association of Counties 2015 Annual Conference & Educational Exposition, June 18, 2015 
  • Author, “Prompt Pay in Florida,” Florida Bar Construction Certification Review Course, 2010 
  • Speaker, “Florida Lien and Surety Law,” Advanced Judicial Studies Conference for Florida Circuit Judges, 2009 
  • Author, “Construction Defect Digest,” Florida Bar Construction Law Institute, 2009

Education

Kim received her law degree from the University of Florida Levin College of Law (J.D. 1980), where she was executive editor of the University of Florida Law Review. She received her undergraduate degree, with high honors, in political science from the University of Florida (B.A. 1978).

Admissions, Certifications and Professional Memberships

Kim is admitted practice in Florida. She is also admitted to practice before the Eleventh Circuit of the U.S. Court of Appeals, and before U.S. District Court of Florida for the Middle and Southern Districts.

She is Board Certified in Construction Law and Appellate Law by The Florida Bar Board of Legal Specialization and Education.

She is a member of the following organizations:

  • Ninth Judicial Circuit Business Court Commission 
  • The Florida Bar
    • Construction Law Certification Review Course – chair, 2009-2011
    • Construction Certification Committee, past chair
    • Construction Law Committee, past vice chair
    • Appellate Practice Certification Committee, past chair
    • Appellate Rules Committee, past appointee
    • Appellate Court Rules, member
  • American Bar Association
    • Appellate Practice Committee, member
    • Subcommittee on Publications, chair
    • Construction Litigation Committee, co-chair 
  • American Inns of Court, Central Florida Chapter, founding barrister 
  • Central Florida Builders Exchange (CFBE), general counsel 
  • Central Florida Association for Women Lawyers, member

Community Engagement

Kim is a mentor for the Children’s Home Society, and is a past chair of Community Coordinated Care for Children, Inc. (4C). She is a board member of the Orlando Shakespeare Company and a past board member of the Orlando Opera.