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Showing posts from November, 2011

Cardinal Change and Payment

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"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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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?

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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

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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

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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

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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

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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

EPA Lead Testing

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Common renovation activities like sanding, cutting, and demolition can create hazardous lead dust and chips by disturbing lead-based paint, which can be harmful to adults and children. To protect against this risk, on April 22, 2008, EPA issued the Renovation, Repair and Painting Rule. It requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 homes, child care facilities and schools be certified by EPA and that they use certified renovators who are trained by EPA-approved training providers to follow lead-safe work practices. Individuals can become certified renovators by taking an eight-hour training course from an EPA-approved training provider. Learn how to become an EPA certified firm and where to take a training course near youwww.epa.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 www.glennrasmussen.com

Davis-Bacon Record Keeping Requirements

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Under the Davis-Bacon and Related Acts (DBRA), covered contractors must maintain payrolls and basic records and submit certified weekly payrolls. Although use of Form WH-347 is optional, the form will satisfy the requirements of Regulations, Parts 3 and 5 (29 CFR, Subtitle A), as to payrolls submitted in connection with contracts subject to the DBRA. Records to be maintained include: Name, address, and social security number of each employee;Each employee's work classification(s);Hourly rate(s) of pay (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof);Daily and weekly numbers of hours worked;Deductions made; andActual wages paid.See29 CFR 5.5(a)(3) for further information.  www.dol.gov
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

Lien Transfer Bond

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One way to remove an invalid claim of lien is to obtain a lien transfer bond and transfer the lien to the bond.  See 713.24, Florida Statutes.



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

Conditional Versus Unconditional Releases

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All prime contractors and subtiers should carefully examine partial or final releases of lien to determine if they are conditional or unconditional.  Conditional releases are conditioned upon payment.  Unconditional releases release your lien rights (and possibly any claim you may have).  Read all releases carefully before signing and edit as needed.
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