Posts

Showing posts from 2011

Notice to Owner

Image
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

Attractive Nuisance Doctrine

Image
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 www.trentcotney.com

Plans and Specifications and Complaint

Image
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 www.trentcotney.com

Contract and Statute of Limitations

Image
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

Dismissing Action as Sanctions

Image
"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

ESCOs and Guaranteed Energy Savings Contracts

Image
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

Construction Liens for Private Property Only

Image
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

Protective Orders and Discovery

Image
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

Image
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

Arbitration Award and Bankruptcy

Image
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

Architect and Engineer Liability for Negligent Design

Image
"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

Emergency Registration upon Death of Contractor

Image
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

Substituted Service

Image
"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 www.trentcotney.com

False Payment Applications and Claim of Lien

Image
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 www.trentcotney.com

Breach of Contract and Mutual Assent

Image
"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 www.trentcotney.com

Quantum Meruit and Statute of Frauds

Image
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 www.trentcotney.com

Using Employees as Notaries

Image
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 www.trentcotney.com


Venue Waiver

Image
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 www.trentcotney.com

Cardinal Change and Payment

Image
"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 Architects, 2010 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 www.trentcotney.com

2010 Florida Building Code

Image
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.
http://www.floridabuilding.org/fbc/thecode/FBC_2009_Icode_Supplement.htm
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 www.trentcotney.com

Bid Protests and Personal Preference

Image
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 www.trentcotney.com

Condominium Purchaser and Developer Dispute

Image
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 www.trentcotney.com

Asbestos Cases Rejected

Image
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 www.trentcotney.com

AIA Contracts and Arbitration

Image
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 www.trentcotney.com

Appeal of Attorney's Fees

Image
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. Klaus, 2011 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 www.trentcotney.com

Changes to Mediation Rules

Image
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 ident…

Pay When Paid Held Unenforceable

Image
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 www.trentcotney.com

Insurance Bad Faith Discovery

Image
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 www.trentcotney.com

Waiver of Arbitration

Image
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 www.trentcotney.com

What is Substantial Completion?

Image
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 www.trentcotney.com

Breach of Contract Defense

Image
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 www.trentcotney.com

Bid Protest Bond

Image
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 www.trentcotney.com

Acceptance of Electronic Contract

Image
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 www.trentcotney.com

Fraudulent Deprivation of Lien Rights

Image
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 www.glennrasmussen.com