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Showing posts from April, 2011

Filing and not Serving a Lien Complaint

Barring a Notice of Contest or an Order to Show Cause suit, the statute of limitations on a lien claim is one year.  Often, a contractor may be in a position where final payment will occur after the limitations period runs.  A suit can be filed in the appropriate county within the limitations period but not served to protect customer relations. 
However, you do have to serve the complaint no later than 120 days after filing or risk the suit being dismissed.  Rule 1.070, Florida Rules of Civil Procedure states:
If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time…

Florida Building Code Glitch Cycle

The development process for the 2010 Florida Building Code is currently in the 45-day “Glitch Cycle” comment period. Glitches are alterations to the current code that were submitted earlier during the code development process and must meet certain criteria before they are accepted for consideration by the Florida Building Commission (FBC).  The FBC will consider glitches that meet the required criteria for consideration at their meetings on June 5-7, 2011 in Gainesville, Florida.

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

Contractor Could Not Use FDOT Fees Provision

In Anderson Columbia Co., Inc. v. FDOT, 744 So.2d 1206 (Fla. 1st DCA 1999), a contractor could not use an attorney's fees provision in a FDOT contract because the fees provision was for the benefit of FDOT and was limited to "ascertaining and collecting losses under the bond" and contractor's action was not on the bond.

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

OSHA and Willful Violations

Although a bad purpose or evil motive is not a necessary element of a willful violation, an employer is entitled to entertain a "good faith" opinion that his conduct conforms to regulatory requirements. Accordingly, a willful violation will not be found where an employer disputes in good faith the applicability of a standard. For example, evidence that an employer reasonably believed that the workplace hazard in question was not subject to regulation, and that the employer's supervisor took steps to alleviate apparent danger at the employer's work site has supported a finding that a violation of an OSHA standard was not willful.
The test of good faith is objective. An employer's belief concerning the factual matters in question must have been reasonable under the circumstances; i.e., the employer's belief must have been "non-frivolous."

Trenton H. Cotney
Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (81…

Delay Damages and Payment Bond Claims

In Fisk Electric Co. v. Travelers Casualty and Surety Co., 2009 WL 196032 (S.D. Fla. 2009), the Court held that a subcontractor could pursue delay damages against a surety based on a private payment bond.  The Court reasoned that the language of the private bond was simliar to a Miller Act bond and that language would allow the subcontractor to pursue delay damges.

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

FRSA Board and Committee Meetings in Melbourne, Florida April 28-30

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FRSA is having its quarterly board and committee meetings in Melbourne, Florida from April 28 through April 30, 2011.  For more information, please go to www.floridaroof.com.

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

Notice of Commencement, Termination and Priority of Claim of Lien

LaSalle Bank National Association v. Blackton, Case NO. 5D10-499 (Fla. 5th DCA 2011) held that where a notice of commencement was recorded before a mortgage was recorded, the notice of termination of the notice of commencement was recorded on same day as the mortgage was recorded, and a construction lien was recorded thereafter, the earlier recorded mortgage had priority over the construction lien.  The trial court erred in finding that a notice of termination was not effective to terminate the notice of commencement, and that the construction lien related back to the filing of the notice of commencement.  The trial court erroneously concluded that a notice of termination having both the owner and contractor as the same entity cannot be effective.  It was not necessary to attach a contractor's final payment affidavit to the notice of termination where the owner averred in the notice of termination that all lienors had been fully paid.

Trenton H. Cotney
Board Certified in Constructio…

Contractor Attorney's Fee Provision for Collection Actions

In Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So.2d 893, (Fla. 4th DCA 2010), the contract contained an attorney's fees provision that allowed the contractor to get attorney's fees if it filed a collection action.  The Court held that this provision could not be used by the homeowner against the contractor despite Section 57.105(7), 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
http://www.glennrasmussen.com/

New Video: Construction Contract Formation Part III of IV

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This is the latest video on construction contract formation.  The video discusses the basics of contract formation and the use of incorporation of other documents by reference. 

The direct link is here: http://www.youtube.com/watch?v=Bia39iodPaU


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

ARRA and Davis-Bacon Act

Davis-Bacon Act wage requirements apply to all American Recovery and Reinvestment Act projects. In other words, even if you are working on a state and not a federal project, if the project is funded partially or entirely by stimulus funds, you will be required to comply with Davis-Bacon wage reporting and wage determinations.

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

Mortgage Superior to Code Enforcement Liens

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City of Palm Bay v. Wells Fargo Bank, Case No. 5D09-1810, filed January 21, 2011: City ordinance granting superiority of code enforcement liens over a prior recorded mortgage was found to conflict with s. 695.11, F. S., which preempted ordinance. Summary judgment in favor of mortgagee was affirmed based on Article VIII, Section 2, Florida Constitution, notwithstanding city’s broad home rule powers.

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

Building Contractor Installation of Doors and Windows

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CILB issued an Order dated October 15, 2010, regarding the Petition for Declaratory Statement filed on August 9, 2010 by Bruce Landers. The board’s Order provides that BUILDING contractors may install non-structural, non-load-bearing windows and doors in buildings greater than 3 stories in height pursuant to s. 489.105(3)9c). Editor Note: Most improvements to structures in excess of 3 stories requires a GENERAL contractor’s license, so this statement represents an expansion of the scope of work permitted to be performed by licensed BUILDING contractor.

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

Satellite Dishes and Electrical Contractor License

Master Tech Satellite v. Master North America, 35 Fla. L. Weekly D2381a, Case No. 3D08-2509, filed October 27, 2010: Affirmed Summary Judgment that contract for installation of satellite dishes was unenforceable pursuant to s. 489.532 (the companion to s. 489.128 for electrical and alarm contractors) because the installer was not licensed. The court noted that the installation required wiring to an electrical source of approximately 18 volts as well as grounding, causing it to “utilize electrical energy in any form” as used in the definition of “electrical contractor” in s. 489.516(2), Fla. Stat. (2004).  A strong dissent by J. Salter criticized the majority for allowing “the contractor-who-should-know-better” to keep customer payments while “stiffing the subcontractor.”


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

Roof Leak and Statute of Limitations for Construction Defects

Traveler Indemnity Company v. Centimark Corporation, 2010 WL 3834611 (S.D.Fla), No. 09-CV-22473, filed September 30, 2010: Roofing company’s motion for summary judgment granted based on Florida’s delayed discovery doctrine under which the four year limitation period begins to run when the insured first discovered a roof leak associated with a newly installed roof.
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
http://www.glennrasmussen.com

Implied Warranties and Latent Defects

Lakeview Reserve HOA v. Maronda Homes, 2010 WL 4257559 (Fla. 5th DCA), Case No. 5D09-1146 filed on October 29, 2010: Summary Judgment entered for developer pursuant to Conklin v. Hurley, 428 So.2d 654 (Fla. 1983) and Port Sewell v. First Federal, 463 So.2d 530 (Fla. 4th DCA 1985), was REVERSED on HOA’s complaint for breach of implied warranties for fitness and merchantability based on latent defects in subdivision common improvements consisting of roads, retention ponds, underground pipes and drainage systems.  The Court determined that there was a certified conflict, while distinguishing Conklin on the facts (investor purchaser of vacate lots unsuccessfully sued developer for defects in abutting seawall based on buyer’s “equal bargaining power,” opportunity for competent inspection, and improvements did not “immediately support the residence”).  In this case, the Court found that for the purpose of liability of implied warranties, “support” could mean physical support (as with the se…

Supervision of Subcontractor by Contractor under Section 489.113

A Final Order Declaratory Statement was issued in DS 2010-055, filed on September 22, 2010, In Re: Malcolm Drilling Company, Inc., holding that a subcontractor who was not required to have a Division II license for foundation boring and soil stabilization on the Miami Access Tunnel, did not need a Division I license pursuant to s. 489.113(2) where all work was to be performed under the supervision of a licensed Division I contractor. For full text of the Petition for this Declaratory Statement see Vol. 36, No. 30, of the July 30, 2010 Florida Administrative Weekly.


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

OSHA Inspection and Citation Process Seminar for PCCA

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I will present a seminar entitled "The OSHA Inspection and Citation Process" to the Pinellas County Contractors Association (PCCA) on April 28, 2011.  This seminar will provide attendees with practical insight needed to understand the legal issues associated with the OSHA inspection and citation process. It will take place at the Cove Cay Country Club, 2612 Cove Cay Drive, Clearwater, FL 33760.






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

Installation of Water Piping on Downstream Side of Back-Flow Assembly

CILB issued a final order on September 7, 2010, granting a Petition for Declaratory Statement received by this board on June 30, 2010, from DeMay, Inc., interpreting s. 489.105(3)(n), F. S. to allow a licensed underground utility contractor to install water piping on the downstream side of the back-flow assembly, except where it is used exclusively for a fire protection system.


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

Cell Phone Tower Alteration and Licensure

An order was filed on March 18, 2011, on the Petition for Declaratory Statement filed by John Lohr, The Red Mountain Group on January 6, 2011, finding that a tower specialty contractor is certified to perform work involving the construction, repair and alternation of an uninhabitable tower, and that additions or attachments that do not affect the structural integrity of a tower are not considered an alteration under Rule 61G4-15.034, FAC.


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

Gas Line Specialty Contractor and Directional Drilling

A CILB order was filed on March 18, 2011, on the Petition for Declaratory Statement filed by Rowdy Carton, Eastern Pipeline Construction, Inc. on December 23, 2010, finding that a gas line specialty contractor is licensed to perform directional drilling as a means of installing gas pipelines.


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

Recent CILB Order: Mechanical Contractor Cannot Hook Up Sewer Lines

CILB issued an order that was filed on March 18, 2011, on the Petition for Declaratory Statement filed by Steven Markel, Complete Environmental Solutions, finding that a mechanical contractor may NOT hook up sanitary or sewer lines, but could potentially be allowed to operate as a prime contractor for such work.

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

Recent CILB Decision: 713.135 and Permitting Requirements

The Construction Industry Licensing Board gave notice of the issuance of an Order regarding the Petition for Declaratory Statement for Anthony C. Apfelbeck, filed on December 6, 2010. The Notice of Petition for Declaratory Statement was published in Vol. 36, No. 52, of the December 30, 2010, Florida Administrative Weekly. The Board considered the Petition at a duly-noticed public meeting held on January 14, 2011. The Board’s Order, filed on February 18, 2011, denies the Petition for Declaratory Statement of Section 713.135, Florida Statutes (notice of commencement and applicabililty of lien). Petitioner is substantially affected as required by Section 120.565, Florida Statutes. The Board does not have jurisdiction to interpret Section 713.135, Florida Statutes. Therefore, the Board denies the Petition for Declaratory Statement.


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

Recent CILB Decision: Local Licensing and Marine Contractor

The Construction Industry Licensing Board gave notice of the issuance of an Order regarding the Petition for Declaratory Statement for Edmund J. Dagner, filed on October 15, 2010. The Notice of Petition for Declaratory Statement was published in Vol. 36, No. 48, of the December 3, 2010, Florida Administrative Weekly. The Board considered the Petition at a duly-noticed public meeting held on January 14, 2011. The petition requested the Board’s interpretation of Section 489.117(4)(a), Florida Statutes, and whether Lake County may continue to locally register and license marine specialty contractors and if the registered marine specialty contractor must register with Construction Industry Licensing Board. THE Board’s Order, filed on February 18, 2011, answers the Petition for Declaratory Statement that pursuant to Section 489.117(4)(a), Florida Statutes, a locally licensed person whose job scope does not substantially correspond to that of a certified specialty contractor established by …

Recent CILB Order: Plumbers and Supply Wells

The Construction Industry Licensing Board issued an Order regarding the Petition for Declaratory Statement for Teddy Medsker, filed on October 10, 2010. The Notice of Petition for Declaratory Statement was published in Vol. 36, No. 48, of the December 3, 2010, Florida Administrative Weekly. The Board considered the Petition at a duly-noticed public meeting held on January 14, 2011. The petition requested the Board’s interpretation of Section 489.105(3)(m), Florida Statutes, and whether plumbing contractors are properly licensed, according to construction industry licensing requirements pursuant to Section 489.105(3)(m), Florida Statutes, to install, maintain, repair, alter, extend or, when not prohibited by law, design drainage and supply wells without obtaining any additional local regulatory license, certificate or registration.

The Board’s Order, filed on February 18, 2011, answers the Petition for Declaratory Statement. Pursuant to Section 489.105(3)(m), Florida Statutes, a certifi…

Recent Case: Appellate Attorney's Fees Awarded to General Contractor

Suffolk Construction Company, Inc. v. First Sealord Surety, Inc., et. al., Case No. 3D-10-788 and 3D09-2009, filed March 23, 2011: In a suit by the general contractor against the plumbing subcontractors and performance bond surety, a $277,195.69 award of appellate attorney fees to the surety was affirmed under the doctrine of law of the case in the absence of evidence of manifestinjustice.


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

Recent Case: Venue and Construction Cases

Gregory Pill, et. al. v. Merco Group of the Palm Beaches, Inc., et. al., Case No. 4D10-2537, filed March 16, 2011: Trial court’s transfer of venue from Palm Beach County to Miami-Dade County was reversed pursuant to the general venue set forth in s. 47.011 in a suit for return of deposits on pre-construction contracts where all defendants resided in Miami-Dade County but the property in litigation was located in Palm Beach County, the appellate court holding that the “joint residency” venue privilege granted by s. 46.01 is not an exception to the general venuestatute.


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

Recent Case: Attorney's Fees Awarded against Roofing Contractor and Attorney

Bay Park Towers Condominium Association, Inc. v. Triple M. Roofing Corp., Case No. 3D09-3004, filed March 16, 2011: Appellant attorney fees awarded as a sanction against roofing contractor AND ITS ATTORNEY pursuant to s. 57.105, and case remanded for determination of amount.


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

Recent Video: Basics of Construction Contract Formation Part II of IV

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Here is the second part of a four part series on construction contract formation.  The video discusses offer, acceptance and consideration.  The direct link is here: http://www.youtube.com/watch?v=ERYIjhvBx1Y




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

The OSHA Initial Inspection Process

OSHA can inspect any job site unannounced.  The inspector/compliance officer must present their credentials to the person in charge of the site and explain the purpose and nature of the inspection at an opening conference.  Generally, OSHA has monitored and collected evidence of job site violations prior to the opening conference.
The inspector may perform a "walkaround" inspection viewing the conditions of the job site and noting any violations.  Upon conclusion of the inspection, the inspector will provide informal information about perceived violations at a closing conference.  The employer may advise the inspector of facts or conditions that may affect OSHA's decision to cite for certain violations.
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
http://www.glennrasmussen.com

Recent Video: Basics of Construction Contract Formation Part I of IV

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As part of the Basic Construction Law educational series, I have prepared a 4 part series on the basics of construction contract formation.  Here is a direct link to the video:  http://www.youtube.com/watch?v=OxiYOd0M9V0.


Here is part I:




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

Recent Decision: Subcontractor Liable for Breach of Contract

Mario’s Enterprises Painting and Wallcovering, Inc., Case No. 3D10-259, filed January 19, 2011: Affirmed trial court’s award of breach of contract damages against a subcontractor hired to re-paint a public school but who refused to complete work base on discovery of existing lead contamination since the levels were well-below OSHA’s acceptable exposure limits.



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

Recent DOAH Decision: Improper Stop Work Order

P.A.T. Auto Transport, Inc., v. Department of Financial Services, Division of Workers’ Compensation, DOAH Case No. 10-3106F and 10-3107F, Final Order entered on November 16, 2010, imposed the maximum ($50,000) award of attorneys fees against the agency for issuing an Amended Stop Work Order without being “substantially justified” pursuant to s. 57.111(3)(e), based on the agency investigator’s failure to make proper inquiry to determine that the trucking company’s drivers were independent contractors (and not employees subject to workers’ compensation insurance requirements). A “preponderance” evidentiary burden was applied to the agency in determining whether it was “substantially justified” in taking action and imposing a penalty under these facts.

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

Recent Case: Election of Remedies, Lost Profit, and Payment Bonds

The Plumbing Service Company v. Progressive Plumbing, Inc., Case No. 5D09-3717, filed October 22, 2010: Trial court ruled that sub-subcontractor was barred by election of remedies doctrine from recovering damages for breach of contract (loss profits on uncompleted work) due to recovery under a s. 713.23 payment bond. Reversed and remanded to allow such action since it was not duplicative of bond coverage for payment of completed work, since election of remedies is based on estoppels to prevent double recovery for the same wrong. Court noted that s. 713.30 provides that bond remedy is “cumulative to other existing remedies….”


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