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Showing posts from December, 2011

Notice to Owner

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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

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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

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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

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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

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"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

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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

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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

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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

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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

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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

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"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

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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

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"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

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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

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"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

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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

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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

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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