Thursday, June 30, 2011

Landscaper Entitled to Evidentiary Hearing on Licensing Action

Landscaper was entitled to evidentiary hearing on his petition for attorney’s fees in administrative licensing action.  Boetzel v. DBPR, 32 So.3d 780 (Fla. 2d 2010).


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, June 29, 2011

False Payment Application does not Invalidate Construction Lien

Submitting a false partial payment application does not invalidate your lien claim – the lien law must be strictly construed and a contractual pay application requirement is not a statutory requirement.  However, a false payment application may expose a contractor to criminal sanctions.  CDC Builders, Inc. v. Rivera Almeria, LLC, 51 So.3d 510 (Fla. 3d DCA 2010).


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, June 28, 2011

Construction Lien Law Seminar for ABC


I will be speaking today at the Holiday Inn Lakewood Ranch in Sarasota from 11:00 a.m. to 1:00 p.m. on the ABC's of Florida Construction Lien Law for ABC Gulf Coast Chapter.  Attendees will receive 1 hour of CILB continuing education credit.


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, June 27, 2011

Notice to Owner and Contractor's Final Payment Affidavit

A contractor is not required to identify in its Contractor’s Final Payment Affidavit unpaid material suppliers that have not served a Notice to Owner.  Fetta v. All-Rite Paving Contractors, Inc., 50 So.3d 1216 (Fla. 4th DCA 2010).


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

Sunday, June 26, 2011

Subcontractor not Beneficiary of Prime Contract

Subcontractors of a general contract unless stated otherwise in the contract documents are incidental beneficiaries who cannot enforce the terms of the primary contract.  Esposito v. True Color Enterprises Construction, 45 So.3d 554 (Fla. 4th DCA 2010).

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

Saturday, June 25, 2011

Builder not Subject to Escrow Requirements

In JPG Enterprises, Inc. v. McLellan, 31 So.2d 821 (Fla. 4th DCA 2010), the court held that home builder was not subject to the escrow requirements of Section 501.1375, Florida Statutes because the owners had title to the land.  Section 501.1375 requires that certain deposits be held in escrow by a developer when the owner does not have title to the land unless the buyer waives the escrow in writing.



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, June 24, 2011

Issue of Material Fact on Equitable Lien and Retention of Benefit

In Jackson-Jester v. Aziz, 48 So.3d 88 (Fla. 2d DCA 2010), the Court found that a genuine issue of material fact existed with regard to whether owner knew that it would be inequitable for owners to retain benefit conferred by purchaser, and therefore, denied a summary judgment against an equitable lien claim. 


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, June 23, 2011

Lien Foreclosure Counterclaim Mandatory on Order to Show Cause

KA Properties, LLC v. USA Construction, Inc., 35 So.3d 1015 (Fla. 5th DCA 2010) holds that failure to file a lien foreclosure counterclaim in response to an order to show cause proceeding within the twenty-day time period will result in the discharge of the lien.


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, June 22, 2011

FRSA Convention Seminars

I will present two seminars at the Florida Roofing, Sheet Metal and Air Conditioning Contractors Association (FRSA) Annual Convention June 22-25 in Orlando, Florida:  "Contractor Licensing Issues and Construction Contracts" and "The Basics of Construction Lien Law and How to Collect Payment on Construction Projects."   The seminars will each provide attendees with 2.0 CILB continuing education credit hours. Additional details about the conference and seminars can be found at 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

Tuesday, June 21, 2011

Person Signing Fraudulent Lien not Individually Liable

In Bruce Tansey Custom Carpentry, Inc. v. Goodman, 33 So.3d 70 (Fla. 2d DCA 2010), the Court held that the person signing a fraudulent lien could not be held individually liable.  The Court also noted that only one punitive damages award was proper where a contractor filed both a claim of lien and amended claim of lien.


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, June 20, 2011

Breach of Contract and Attorney's Fees

The trial court has broad discretion to determine which party prevailed on the significant issues in the litigation for purposes of determining entilement to attorney's fees in a breach of contract action.  Sidlow v. Bowles Custom Pool & Spas, Inc., 32 So.3d 722 (Fla. 5th DCA 2010).


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

Sunday, June 19, 2011

Last Day of Work and Overstating Construction Lien Amount

In Sam Rodgers Properties, Inc. v. Chmura, 2011 WL 1565446 (Fla. 2d DCA 2011), a home builder sued the purchaser for breach of contract and lien foreclosure.  The Court issued several useful holdings.  First, the fact that there was no meeting of the minds with regard to extra work performed does not invalidate the original executed contract.  Second, additional work performed by the home builder to secure the property which included finishing the roof system acted to extend the “last day of work” for purposes of calculating the 90 days to record the claim of lien. 

Third, the home builder could not include amounts spent on insurance or property taxes for the constructed property in its claim of lien.  However, the inclusion of those amounts did not render the lien invalid.
Finally, the Court held that the filing of an erroneous amended claim of lien did not render the initial claim of lien unenforceable.

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

Saturday, June 18, 2011

Maintenance Services are not Lienable

Residential cleaning, maintenance and concierge services are not lienable under Florida construction lien law.  Parc Central Aventura East Condominium v. Victoria Group Services, Inc., 54 So.3d 532 (Fla. 3d 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, June 17, 2011

Suspension of Work Required for Eichleay Formula

In Martin County v. Polivka Paving, Inc., 44 So.3d 126 (Fla. 4th DCA 2010), the Court held that entitlement to home office overhead is not a jury issue and that a suspension of work is required to utilize the Eichleay formula to calculate home office overhead. 


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, June 16, 2011

Architect Individually Liable for Malpractice

"Professionals may be personally and individually liable for any negligence committed by tehm while rendering professional services as an employee of a corporation."  Trikon Sunrise Associates, LLC v. Brice Building Company, Inc., 41 So.3d 315 (Fla. 4th DCA 2010). 


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, June 15, 2011

Prejudgment Interest on Lost Profits

Prejudgment interest is recoverable on lost profits.  Bosem v. Musa Holdings, Inc., 46 So.3d 42 (Fla. 2010).


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, June 14, 2011

No Private Cause of Action against Qualifier for Building Code Violation

Scherer v. Villas del Verde Homeowners Association held that a qualifier cannot be held individually liable under Section 553.84, Fla. Stat. for a building code violation following Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla. 1994).


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, June 13, 2011

Res judicata Applied to Contractor's Defenses

In W&W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79 (Fla. 4th DCA 2010), the general contractor had filed suit against a window installation subcontractor for breach of contract damages.  The subcontractor counterclaimed for nonpayment.  The prime settled with the manufacturer of the windows and subsequently dismissed its claims against the subcontractor with prejudice. 

The prime sought to amend to add additional defenses based on setoff.  The Court held that the doctrine of res judicata barred the prime's ability to add the setoff defense because it dismissed the claim giving rise to the setoff with prejudice. 

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

Sunday, June 12, 2011

Pleading Elements of Fraudulent Misrepresentation

Butler v. Yusem, 44 So.3d 102 (Fla. 2010): "there are four elements to fraudulent misrepresentation: (1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation."

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

Saturday, June 11, 2011

Equitable Lien on Undisbursed Construction Proceeds

In CTX Mortgage Co., LLC v. Advantage Builders of America, Inc., 47 So.3d 844 (Fla. 2d DCA), the Court held that a lender was not enriched by undisbursed proceeds because it suffered damages in the form of a diminished security interest.  Accordingly, the contractor was unable to prove that the lender's retention of the funds were inequitable.

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, June 10, 2011

Ecomomic Loss Rule and Surveyor Malpractice

In Rocks v. McLaughlin Engineering Co., 49 So.3d 823 (Fla. 4th DCA 2011), the Court held that surveyors are "professionals" and as such, the economic loss rule does not bar claims for negligence and professional malpractice.

 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, June 9, 2011

FRSA Convention June 22-25, 2011


This year's FRSA Convention and Florida Roofing & Sheet Metal Expo will be held at The Peabody Hotel and the Orange County Convention Center in Orlando, FL from June 22 - 25, 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

OSHA Directive: New Changes to Residential Fall Protection


OSHA Directive Number STD 03-11-01 cancels OSHA Instruction STD 03-00-001, the Agency’s interim enforcement policy on fall protection for specified residential construction activities, and replaces it with new compliance guidance. Under the new policy, employers engaged in residential construction must comply with 29 CFR 1926.501(b)(13).Under 29 CFR 1926.501(b)(13), workers engaged in residential construction six (6) feet or more above lower levels must be protected by conventional fall protection (i.e., guardrail systems, safety net systems, or personal fall arrest systems) or other fall protection measures allowed elsewhere in 1926.501(b). 

However, if an employer can demonstrate that such fall protection is infeasible or presents a greater hazard, it may implement a fall protection plan meeting the requirements of 1926.502(k). The fall protection plan’s alternative measures must utilize safe work practices that eliminate or reduce the possibility of a fall. The plan must be written and be site-specific. A written plan developed for repetitive use for a particular style/model home will be considered site-specific with respect to a particular site only if it fully addresses all issues related to fall protection at that site.  

For purposes of determining the applicability of section 1926.501(b)(13), the term “residential construction” is interpreted as covering construction work that satisfies the following two elements: (1) the end-use of the structure being built must be as a home, i.e., a dwelling; and (2) the structure being built must be constructed using traditional wood frame construction materials and methods. The limited use of structural steel in a predominantly wood-framed home, such as a steel I-beam to help support wood framing, does not disqualify a structure from being considered residential construction.

The changes go into effect on June 16, 2011.  From www.osha.gov.






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, June 8, 2011

Architect Expert Testimony

In Parc Royale East Development, Inc. v. U.S. Project Management, Inc., 38 So.2d 865 (Fla. 4th DCA 2010), an architect presented expert testimony to support lost profit damages.  The Court held that the expert testimony was insufficient because it contained conclusions and inferences that were not supported by the proffered evidence.

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, June 7, 2011

HB 0985 Hillsborough County Public Project Bonds

HB 0985 - Hillsborough County public project bonds.  This bill defers the repeal of Chapter 2004-414, Laws of Florida, which relates to projects for which payment and performance bonds may be waived for construction of public buildings, public works or repairs on public buildings or public work when the cost of the project is below a certain threshold amount and the bid is awarded through an economic development program created to encourage local small businesses to participate in county procurement programs.


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, June 6, 2011

Criminal Penalties for Unlicensed Contracting

Section 489.127, Fla. Stat. provides that engaging in unlicensed activity is a first degree misdemeanor.  A repeat offense or engaging in unlicensed activity during a time of emergency is a third degree felony.


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

Sunday, June 5, 2011

Chinese Drywall and Insurance Coverage

In Auto-Owners Insurance Company v. American Building Materials, Inc. and KB Home, et.al., 2011 WL 1878236, Case No. 8:10-cv-313-T-24-AEP, issued May 17, 2011, a home builder (KB Homes) was sued by homeowners for damages resulting from the use of Chinese drywall. KB Homes sued its drywall supplier, American Building Materials, Inc. (ABM), to whom Auto-Owners had issued a Commercial Liability Insurance policy. KB Homes also made a claim against this policy, and Auto-Owners brought suit against both KB Homes and ABM seeking a declaration that it had neither a duty to defend nor indemnity in the underlying lawsuit. The Court held that under the “property damages” coverages, Auto-Owners was obligated both to defend and to pay indemnity for such damages, since these were not excluded under the “pollution,” “sistership,” or “your products” provisions of the policy. While this opinion makes reference to the multi-district litigation in Louisiana involving Chinese drywall products, its ruling is limited just to the facts of the underlying case.





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

Top of Form

Saturday, June 4, 2011

Florida Homeowners' Construction Recovery Fund Decision

In Department of Business and Professional Regulation, Construction Industry Licensing Board v. Jack V. Organo, Case Nos. 11-0244PL and 11-0245PL, a recommended Order was entered on April 13, 2011 for two (2) fines of $250 each for failure to include notice of recovery fund in construction contracts, and two (2) fines of $3,000 and $1,000 each for commencing construction prior to obtaining building permits with two-year and one-year probation periods to run concurrently.



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

Friday, June 3, 2011

489.128 and Local License

In Austin Building Company v. Rago, Ltd. And Federal Insurance Company, Case No. 3D09-3238, filed April 27, 2011, there were cross-claims by both the prime contractor and concrete structural subcontractor based on Section 489.128, Fla. Stat. which were resolved by summary judgments in favor of each party (and the surety, who insured both the contractor and the subcontractor). Both judgments were reversed in this appeal based on the Court’s retroactive application of the 2009 statutory changes that delete reference to a “local” license, and on the genuine issue of material fact as to the extent of the contractor’s knowledge of the subcontractor’s unlicensed status citing Castro v. Sangles, 637 So.2d 989 (Fla. 3d DCA 1994) barring relief to a plaintiff who participated in a wrongdoing.

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

Thursday, June 2, 2011

Senate Bill 1196 - Construction Liens

This bill which passed the regular session states that a lessor's interest in property is not subject to a construction lien made by a tenant if certain documents containing specific information and meeting certain criteria are recorded in the county where work is performed before the recording of a notice of commencement. This bill overrides Everglades Electric Supply, Inc. v. Paraiso Granite, LLC, 28 So. 3d 235 (Fla. 3rd DCA 2010) and authorizes certain lienors to demand that a landlord serve verified copies of a lease prohibiting liability for improvements made by a tenant. 




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