Friday, December 30, 2011

Notice to Owner


Prior to filing a lien, a lienor who does not have a direct contract with the owner, must serve the owner with a Notice to Owner.  The Notice to Owner must state the lienor's name and address, and a description of the real property and the nature of the services or materials being furnished. The Notice to Owner must be served before commencing, or within 45 days of commencing, to furnish the services or materials (but before owner's final payment to the contractor). A lien cannot be enforced unless the lienor has served the Notice to Owner as described above.   (excerpt from www.myfloridalicense.com).

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Thursday, December 29, 2011

Attractive Nuisance Doctrine

Contractors should address residential job site control in their contracts to determine who is responsible for safeguarding the property when the contractor is not present.  Normally, this is the contractor's responsibility.  


Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Wednesday, December 28, 2011

Plans and Specifications and Complaint

Plans and specifications do not need to be attached to the complaint if they are overly voluminous.  See United States v. Goodman, 287 F.2d 871 (5th Cir. 1961).


Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Tuesday, December 27, 2011

Contract and Statute of Limitations

A contract provision that decreases the statute of limitations is void.  Section 95.03, Florida Statutes.

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Friday, December 23, 2011

Dismissing Action as Sanctions

"Dismissal of a cause of action as sanctions for failing to obey an order requiring discovery is a drastic remedy which should be used only in extreme situations."  Momenah v. Ammache, 616 So.2d 121 (Fla. 2d DCA 1993).

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Wednesday, December 21, 2011

ESCOs and Guaranteed Energy Savings Contracts

A guaranteed energy savings contract should have special provisions governing the timing and scope of audits and reviews.

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Tuesday, December 20, 2011

Construction Liens for Private Property Only

Construction liens apply to private property only and cannot encumber government-owned property.  Section 713.01, Florida Statutes.

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Thursday, December 15, 2011

Protective Orders and Discovery

A motion for protective order does not stay discovery until the motion is granted.  Momenah v. Ammache, 616 So.2d 121 (Fla. 2d DCA 1993).

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Miller Act Suit

Section 207b(b) of the Miller Act states that suit shall be brought in the name of the United States, for the use of the claimant, in the US District Court "for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit."  

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Wednesday, December 14, 2011

Arbitration Award and Bankruptcy

A bankruptcy court can use a "non-binding arbital decision as the basis for estimating a claim."  In re Enron Corp., 2006 WL 544463 (Bankr. S.D.N.Y. 2006).

Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Tuesday, December 13, 2011

Architect and Engineer Liability for Negligent Design

"An architect or structural engineer may avoid liability for negligent design if it is proven that deviations in construction are material and that the deviations have been the proximate cause of the damages claimed by the plaintiff."  Cincinnati Riverfront Coliseum, Inc. v. McNulty Co., 504 N.E.2d 415 (Ohio 1986).


Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Monday, December 12, 2011

Emergency Registration upon Death of Contractor

Section 489.121, Florida Statutes, provides: "If an incomplete contract exists at the time of death of a contractor, the contract may be completed by any person even though not certified or registered. Such person shall notify the board, within 30 days after the death of the contractor, of his or her name and address, knowledge of the contract, and ability to complete it. If the board approves, he or she may proceed with the contract. For purposes of this section, an incomplete contract is one which has been awarded to, or entered into by, the contractor before his or her death, or on which he or she was the low bidder and the contract is subsequently awarded to him or her, regardless of whether any actual work has commenced under the contract before the contractor’s death."



Trenton H. Cotney
Florida Bar Certified in Construction Law

www.trentcotney.com

Friday, December 9, 2011

Substituted Service

"Perfection of substituted service requires strict compliance with the statutory prerequisites because such service is an exception to personal service."  Wyatt v. Haese, 649 So.2d 905, 907 (Fla. 4th DCA 1995).


Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Thursday, December 8, 2011

False Payment Applications and Claim of Lien

A false payment application does not, in and of itself, invalidate an otherwise valid claim of lien.  CDC Builders, Inc. v. Rivera Almeria, LLC, 51 So.3d 510 (Fla. 3d DCA 2011) (also discusses criminal sanctions for misapplication of funds and signing a false pay app).



Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Wednesday, December 7, 2011

Breach of Contract and Mutual Assent

"Breach of contract requires proof of the parties' mutual assent, or meeting of the minds, on all the essential terms of their agreement."  Sam Rodgers Properties v. Chmura, 2011 WL 1565446 (Fla. 2d DCA 2011).

Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333


Monday, December 5, 2011

Quantum Meruit and Statute of Frauds

The statute of frauds is not a defense to a claim for quantum meruit or implied contract.  Harrison v. Pritchett, 682 So.2d 650 (Fla. 1st DCA 1996).

Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Friday, December 2, 2011

Using Employees as Notaries

So long as the employee is not an owner of the company and  does not receive a benefit other than his or her salary and the fee for services as a notary public (as authorized by law), the employee can notarize a document for the employer.  Section 117.107(12), Florida Statutes.

Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333



Thursday, December 1, 2011

Venue Waiver

Filing a notice of appearance in a case does not waive your right to contest venue.  Podd v. Becker, 728 So.2d 1234 (Fla. 3d DCA 1999).  

Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Wednesday, November 30, 2011

Cardinal Change and Payment


"A contractor faced with a substantial change in its originally contracted scope of work, who is unable to successfully negotiate a price for that additional work, may elect to continue to work and reserve its right to subsequently obtain a judicial determination as to the value of the changes, so long as the other contracting party continues to demand performance of the increased scope of work, and in the absence of any conflicting provision of the contract."  Ted Jacob Engineering Group v. Ratcliff Architects2010 WL 3294341 (Cal.App. 1 Dist.).

Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Tuesday, November 29, 2011

2010 Florida Building Code


The 2010 Florida Building Code is available online. For a copy of the code with the highlighted changes click on the link below. The 2010 FBC goes into effect on March 15, 2012.


Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Monday, November 28, 2011

Bid Protests and Personal Preference

A public agency may not arbitrarily or capriciously discriminate between bidders or make the award on the basis of personal preference.  Hotel China and Glasswork Co. v. Board of Public Instruction, 130 So.2d 78 (Fla. 1st DCA 1961).

Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Wednesday, November 23, 2011

Condominium Purchaser and Developer Dispute

Summary judgment in favor of condominium purchaser against developer for breach of contract and return of deposits was reversed to give the parties an opportunity to be heard and due to existence of disputed genuine issues of material fact pertaining to the breach.  Ness Racquet Club, LLC v. Ocean Four 2108, LLC,  2011 WL 4578164 (Fla. 3d DCA 2011).


Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333

Tuesday, November 22, 2011

Asbestos Cases Rejected

The Court in Anthony R. Witkiewicz v. Acands, Inc. Flowserve Corporation, Case No. 4D08-1170, filed October 19, 2011 upheld the dismissal of asbestos cases based on the failure to satisfy the conditions of Section 774.201, Florida Statutes, and American Optical Corp. v. Spiewak, 2011 WL 2652189 (Fla. 2011).  



Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Monday, November 21, 2011

AIA Contracts and Arbitration

Trial court's grant of stay of arbitration was reversed based on terms of AIA Document A201-1997 General Conditions of the Contract for Construction, despite use of a “Supplemental General Conditions” agreement that deleted the arbitration provisions and referenced an outdated 1987 AIA document.  Speegle Construction Company, Inc. v. District Board of Trustees of Northwest Florida State College, 2011 WL 4597505 (Fla. 1st DCA 2011).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Friday, November 18, 2011

Appeal of Attorney's Fees

The appeal of a determination of entitlement to attorney's fees was dismissed because the trial court previously had reserved ruling on the amount of reasonable fees.  Islander Building Company v. Klaus2011 WL 5008540 (Fla. 2d DCA 2011).


Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Thursday, November 17, 2011

Changes to Mediation Rules


The Florida Supreme Court approved significant changes to Rule 1.720, Florida Rules of Civil Procedure (Mediation Procedures) concerning a representative’s appearance at mediation with authority to settle a case.  The most important parts of the new rule (which is effective on January 1, 2012) appear below:


(c) Party Representative Having Full Authority to Settle. A “party representative having full authority to settle” shall mean the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing herein shall be deemed to require any party or party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.

. . .

(e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).

(f) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys’ fees, and costs, against the party failing to appear. The failure to file a confirmation of authority required under subdivision (e) above, or failure of the persons actually identified in the confirmation to appear at the mediation conference, shall create a rebuttable presumption of a failure to appear.

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278


Wednesday, November 16, 2011

Pay When Paid Held Unenforceable


Pay when paid clause in a subcontract was held unenforceable because the subcontract incorporated the terms of the prime contract by reference, and the final payment provision in the prime contract was ambiguous. International Engineering Services v. Scherer Construction & Engineering of Central Florida, LLC., 2011 WL 5109306 (Fla. 5th DCA 2011).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278


Tuesday, November 15, 2011

Insurance Bad Faith Discovery

Insurer's claim file was not discoverable in lawsuit based on breach of contract and not bad faith against the insurer.  Gavin's Ace Hardware, inc. v. Federated Mutual Insurance Company, 2011 WL 5104476 (M.D. Fla. 2011).  




Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278


Monday, November 14, 2011

Waiver of Arbitration

Active participation in a lawsuit may result in the waiver of the right to arbitrate.  Florida Education Association v. Sachs, 650 So.2d 29 (Fla. 1995).



Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Friday, November 11, 2011

What is Substantial Completion?

Unless otherwise defined by contract, Florida case law defines substantial completion as when the construction is sufficiently complete so that the owner can use or occupy it for its intended purpose.  J.M. Beeson Co. v. Sartori, 553 So.2d 180 (Fla. 4th DCA 1989).



Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Thursday, November 10, 2011

Breach of Contract Defense

Impossibility of performance is a defense to a breach of contract claim.  Where it is impossible to perform under the terms of a contract because of current conditions, a contractor may assert this defense.  Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So.2d 614 (Fla. 2d DCA 1965).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Wednesday, November 9, 2011

Bid Protest Bond

Section 287.042(2)(c) provides:

"Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department, a water management district, or an agency pursuant to s. 120.57(3)(b) shall post with the department, the water management district, or the agency at the time of filing the formal written protest a bond payable to the department, the water management district, or agency in an amount equal to 1 percent of the estimated contract amount. For protests of decisions or intended decisions pertaining to exceptional purchases, the bond shall be in an amount equal to 1 percent of the estimated contract amount for the exceptional purchase...." 

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Tuesday, November 8, 2011

Acceptance of Electronic Contract

Clicking on the "I accept" button of an electronic contract is sufficient acceptance of the terms under Florida law.  Siedle v. National Ass'n of Securities Dealers, Inc., 248 F.Supp. 2d 1140 (M.D. Fla. 2002).

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Monday, November 7, 2011

Fraudulent Deprivation of Lien Rights

Section 713.31(1), Florida Statutes, provides a cause of action for a claimant when the owner or any other lienor such as the prime contractor deprives the claimant of its lien rights by fraud or collusion.  Wal-Mart Stores, Inc. v. AAA Asphalt, Inc., 677 So.2d 93 (Fla. 1st DCA 1996).


Trenton H. Cotney
Florida Bar Certified in Construction Law
Glenn Rasmussen Fogarty & Hooker, P.A.
100 S. Ashley Dr., Suite 1300
Tampa, FL 33602
(813) 229-3333