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Showing posts from July, 2013

Appellate Court Withdrew Earlier Opinion

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Suzlon Energy v. Ventus De Nicaragua, S. A., 38 Fla. L. Weekly D1369a, Case No. 3D11-1087, filed June 19, 2013: Granting a Motion for Rehearing, the appellate court WITHDEW its earlier opinion reported at 38 Fla. L. Weekly D304a, and affirmed the trial court's order confirming the arbitration award in favor of Venus.
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com


Thermostat Recycling Corporation Offers New Training Videos

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Thermostat Recycling Corporation recently released training videos for contractors and HVAC wholesalers to better understand and implement the TRC program.These videos provide step-by-step guidance to its mercury thermostat recycling program.
The Thermostat Recycling Corporation, founded in 1998, is an industry-funded non-profit corporation supported by 31 manufacturers.  TRC maintains a network of more than 3,600 collection sites nationwide and has recovered more than 1.4 million thermostats since its inception.
The videos illustrate the importance of recycling mercury thermostats and how easily contractors or consumers can bring mercury thermostats they remove from service to their participating HVAC wholesaler to recycle for free.  The videos also serve as a tutorial for participating by providing detailed steps on how to run the program from their branch.  
The videos, available to view on TRC’s YouTube page (http://www.youtube.com/user/ThermostatRecycling) and website (www.thermost…

Summary Judgment Entered in Favor of Roofing Supplier

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GMT Construction, Inc. and Ronald A. Smith v. Gulfside Supply, Inc., 38 Fla. L. Weekly D1315a, Case No. 3D12-732, filed June 12, 2013: Summary judgment entered in favor of roofing supplier against roofing contractor was REVERSED and REMANDED based on disputed evidence of materials facts regarding supplier's manager knowledge that contractor was unaware of purchase, and orally told contractor that contractor's supervisor was personally liable for the purchases when contractor objected to invoice.
(From RPPTL Subcommittee)
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com


Complying With I-9 Requirements

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Minimal progress has been made in recent years about an issue clearly important to the roofing industry – immigration.Roofing workers are scarce, and without a reliable source of workers, many contractors are faced with the risks of hiring undocumented workers.
The Immigration reform and Control Act requires employers to verify employees’’ identities and employment eligibility; the Employment Eligibility Verification Form I-9 is the primary means of documenting this verification.  Employers who fail to properly complete I-9 forms are subject to civil fines ranging from $110 to $1,100 per paperwork error violation.
Immigration and Customs Enforcement (ICE) recently announced it conducted the highest number of I-9 audits during fiscal year 2012.  ICE indicated I-9 audits of employers increased from 250 in fiscal year 2007 to more than 3,000 in fiscal year 2012.  Expect this trend to continue.  With an understanding of how the audit process works and how you can prepare for it, your busine…

An Inconsistent Position on Appeal

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Sarasota Renaissance II v. Batson-Cook Company, Copper Carry and Associates, et. al, 38 Fla. L. Weekly D1279a, Case No. 2D11-5449, filed June 12, 2013: Contractor sued developer for breach of an oral "reconstruction" agreement for the costs to repair water intrusion damages to a condominium, as well as the performance bond surety, and the developer assigned to contractor its claims against the architect for faulty design on the expressed agreement that the assignment would not serve to release any of such claims. Contractor filed motion to amend its pleadings to assert the claims assigned to it pursuant to Florida Rule of Civil Procedure 1.260(c), which the trial court denied based on the argument that such amendment would be prejudicial to the architect, and granted the architect's motion to drop the developer from the suit by ruling that the damages claims of the developer had been released by the assignment. On appeal by the developer, the court held that the assignme…

The Center for Environmental Innovation in Roofing Offers a Free Webinar about Scoring RoofPoint™ Projects

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The Center for Environmental Innovation in Roofing will hold a free webinar, Scoring RoofPoint Projects, July 25 at 1 p.m. EST. The webinar is the second in a two-part series presented by RoofPoint; the first part, Submitting RoofPoint Projects, will be held July 18. 
Scoring RoofPoint Projects will provide a detailed review of the RoofPoint project rating system and scoring process, including tips for rating and scoring RoofPoint projects. 

You will learn the key intents and standards behind the RoofPoint credit requirements; specific requirements for each RoofPoint credit; how to assign "Meets Requirements," "Exceeds Requirements" and "Meets Intent" scores to each credit; the minimum project rating for RoofPoint registration; and where to find additional information about RoofPoint credits, requirements and scoring. 

To register for the webinar, click here


(From NRCA Newsletter)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 12…

NRCA Issues Statement Regarding Employer Health Care Mandate

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On July 2, the Obama administration announced it will delay the employer mandate components of the Affordable Care Act (ACA) by one year. The provisions of the law now will take effect Jan. 1, 2015, rather than in 2014. Therefore, employers with 50 or more "full-time equivalent" employees, as defined in the law, will have one more year to ensure they are in compliance with the requirement to provide government-approved health insurance or face certain Internal Revenue Service (IRS) penalties. 

NRCA has opposed the ACA's employer mandate because of its complexity and fears it will further increase health insurance costs for employers. NRCA currently supports legislation introduced in Congress to repeal the mandate. Additionally, NRCA has provided official comments in the regulatory process aimed at making the law's provisions as practical as possible for employers. 

NRCA has issued a statement regarding the delay for the employer health care mandate. To view the stateme…

Reversed and Remanded for Further Proceedings

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Narciso Vivot v. Bank of America, 38 Fla. L. Weekly D125c, Case No. 2D12-2757, issued June 5, 2013: After defendant successfully moved to dismiss  mortgage foreclosure for failure to prosecute, trial court's denial of attorney fees based on the terms of the note and mortgage and s. 57.105 was REVERSED and REMANDED for further proceedings. The appellate court cited: Raze v. Deutsche Bank, 100 So. 3d 121 (Fla. 2nd DCA 2012, in which fees were awarded to the defendant as the "prevailing party" after the trial court had involuntarily dismissed a mortgage foreclosure suit based on the plaintiff bank's failure to comply with the court's directives: Stout Jewelers, Inc., v. Corson, 639 So. 2d 82 (Fla. 2d DCA 1994), in which fees were awarded to the tenant as the "prevailing party" after the landlord's action has been dismissed for failure to prosecute; and J. P. Morgan Mortgage Acquisition Corp. v. Golden, 98 So. 3d 220 (Fla. 2nd DCA 2012), in which  defen…

Employer Mandate Tax Penalties and Mandatory Information Reporting Requirements Under Health Care Law Delayed Until 2015

For more than three years, ABC has advocated for the repeal of the complex and costly employer mandate included in the Affordable Care Act (ACA). On July 2, the Obama Administration finally acknowledged employers' concerns about implementing the burdensome requirements in a timely and effective manner. In a small step forward, the Treasury Department issued a blog post that announced the following: 
·  Delay until 2015 the employer shared responsibility (or employer mandate) tax penalties. Beginning in 2014, the ACA mandated that employers with 50 or more full-time equivalent employees offer a certain level of coverage or be subject to new taxes. According to the blog post, the administration is extending transition relief for the employer shared responsibility payments (under section 4980H). These payments will not apply for 2014. Any employer shared responsibility payments will not apply until 2015.  ·  Delay until 2015 the mandatory employer and insurer reporting requirements. Th…

May Contracts Increase 5 Percent

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McGraw-Hill Construction, a division of The McGraw-Hill Cos., New York, has reported construction starts increased 5 percent in May. Total construction starts in May were down 3 percent compared with May 2012.
"The construction industry has shown modest improvement during the past year, helped by some project types while restrained by others," says Robert A. Murray, vice president of economic affairs for McGraw-Hill Construction. "The housing sector played a leading role last year in lifting overall construction activity, and although this year's month-to-month gains have been smaller, housing continues to lead the hesitant construction expansion.
"Nonresidential building has yet to provide much of a contribution, as tenuous gains for commercial building have been offset by further weakness for institutional building," he continues. "Still, the April and May pickup for nonresidential building could be a sign of more growth to come. As for nonbuilding co…

NIOSH Releases Ladder Safety App for Mobile Devices

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The National Institute for Occupational Safety and Health (NIOSH) has announced the release of a new free app for mobile devices aimed at improving extension ladder safety. An app is a program that runs inside another service.

Falls from ladders are an important source of preventable construction injuries. Misjudging the ladder angle is an important risk factor for a fall. If the ladder is set too steeply, it is more likely to fall back or slide away during use; if it is set too shallow, the bottom can slide out.

The NIOSH Ladder Safety app has an angle of inclination indicator, making it easy to set an extension ladder at the proper angle of 75.5 degrees. The app's inclination indicator allows most mobile devices to provide a visual and audible signal when the ladder angle is set correctly. The Ladder Safety app includes additional information about ladder safety, such as ladder selection, inspection, accessorizing and use.

The NIOSH Division of Safety Research tested and patented t…

Rebuilding Together® and Lowe's® Search for Tradesperson of the Year™

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Rebuilding Together and Lowe's have partnered to search for the Tradesperson of the Year.
The Tradesperson of the Year is someone who gives back to the community and adds value to his or her skilled trade industry.
If you know a roofing professional or other skilled trade professional who meets these qualifications, submit a nomination. If the person you nominate wins, he or she will receive a trip for two to Super Bowl XLVIII in East Rutherford, N.J., in 2014, as well as a $1,000 Lowe's gift card. Rebuilding Together will accept nominations from June 21 through Sept. 1. Finalists will be announced Sept. 11, and public voting for the Tradesperson of the Year will run through Oct. 1. The grand prize winner will be announced at the Remodeling Show in Chicago in mid-October.
For more information and to submit a nomination, visit RTTradespersonOfTheYear.com.
(From NRCA Newsletter)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 336…

NIOSH Releases Manual Material Handling Safety Publication

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The National Institute for Occupational Safety and Health (NIOSH) has announced the release of a new publication, Simple Solutions for Home Building Workers: A Basic Guide for Preventing Manual Material Handling Injuries, which also is available in Spanish.

Home building is physically demanding work, and manual material handling may be the most difficult part of the job. These activities increase the risk of painful strains and sprains and more serious soft tissue injuries.

This publication was written especially for young and less experienced home building workers but provides basic information about readily available work practices and equipment that can help new and experienced workers, contractors and builders prevent serious manual material handling injuries. Original drawings and nontechnical language are used to describe manual material handling injury risks and how these risks can be reduced or eliminated for certain activities.

Simple Solutions for Home Building Workers is in th…

Recent Safety Tips from Professional Roofing

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According to the U.S. Bureau of Labor Statistics, on average, more than four roofing workers die each month because of falls.  And the National Safety Council reports more than 6,000 people die each year from falling from roofs and ladders. Consequently, before starting any type of roofing job, whether it is a complete roof system replacement, repair, or basic maintenance, there are a few steps you can take to minimize the risk of falls. Issue employees appropriate safety equipment and educate them about how to properly use and wear hard hats, harnesses and suitable footwear.Always inspect harnesses for tears, splits, rips, and buckle or D-ring damage.Place a great deal of importance on employees taking preventative safety measures.Ladders should be kept away from electrical wires and electrical boxes, consider using ladders made from nonconductive materials such as fiberglass.You should contact the building owner and local power company before starting any type of work on any roof so t…

Motion for Rehearing Granted

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Tawayna Braxton v. Evelyn Gradowski, 38 Fla. L. Weekly D1157b, Case No. 2D12-2707, issued May 24, 2013: While certifying conflict with Sanchez v. State Farm Fla. Ins. Co., 997 So. 2d 1209 (Fla. 3d DCA 2008), appellate court granted a motion for rehearing of its earlier order denying attorney fees pursuant to section 768.79 (offer of judgment), granted the motion and remanded to trial court for determination of entitlement and amount of appellate attorney fees.
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

City Ordinance Found to Conflict with State Statutes

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City of Palm Bay v. Wells Fargo Bank, N.A., 38 Fla. L. Weekly S322a, Supreme Court of Florida Case No. SC11-514, issued on May 16, 2013: While the majority opinion acknowledges that a Florida municipality is given broad authority to enact ordinances under its home rule powers as set forth in Article VIII, Section 2(b), Florida Constitution "except as provided by law,", and section 166.021, Florida Statutes, the court upheld the 5th DCA's opinion that the city "superpriority" ordinance provision for code enforcement liens is invalid as being in conflicts with state statutes giving recorded mortgages priority.
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Appellate Court Affirms Trial Court's Decision

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East Coast Metal Decks, Inc., v. Boran Craig Barber Engel Construction Co., Inc., 38 Fla. L. Weekly D1061a, Case NO. 2D12-1013, issued May 15, 2013: While finding that contractual venue provisions are not binding on the court if there are compelling reasons not to enforce them, the appellate court affirmed the trial court's denial of the subcontractor's motion to transfer a breach of contract action brought by the contractor in Collier County to Brevard County (where one of the projects was located), even where the terms of the surety bonds mandated venue in Brevard County (and denied conditionally awarding prevailing party attorney fees)..
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Trial Court's Summary Judgment Affirmed

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Benjamin Ergas and Beth Ergas v. Universal Property and Casualty Insurance Company, 38 Fla. L. Weekly D900a, Case No. 4D11-3803, issued April 24, 2013:  Affirmed trial court's summary judgment in favor of homeowners insurance company finding that "marring" was excluded from coverage by the express terms of the policy. In this case, the "marring" was caused when the owner dropped a hammer on a floor and left a hammer-head impression in the title.
 (From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Does Section 95.11, Florida Statutes, Apply to Arbitration?

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Raymond James Financial Services, Inc., v. Barbara J. Phillips, etc., et. al., 38 Fla. L. Weekly S325a, Case No. SC11-2513, issued May 16, 2013: On a rephrased certified question from the Second District Court of Appeal, "Does Section 95.11, Florida Statutes, Apply to Arbitration," the Supreme Court answered in the affirmative and quashed the lower opinion. More than four (4) years after the cause of action for negligence arose, the investor filed for arbitration in accordance with its account agreement which contained a provision for final and binding arbitration. In finding that and arbitration proceeding is an "action" for purposes of the statute of limitations, this opinion points out the absurdity of holding otherwise whereby an arbitration agreement could shorten the statute of limitations.
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Certified Question Involving a Direct Conflict

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First Baptist Church of Cape Coral, Florida, Inc., v. Compass Construction, Inc., 38 Fla. L. Weekly S357a, Case No. SC11-1280, issued May 30, 2013: In a certified question involving a direct conflict between the lower court (2nd DCA) and Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000), the Florida Supreme Court upheld the validity of an alternative fee recovery clause in a fee agreement that uses an hourly rate as the other basis for payment, and quashed and remanded for reinstatement of the judgment awarding attorney's fees.
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com

Judgment Reversed and Remanded

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Chrtistos N. Kritikow and Jupiter Holding Co, LLC v. John T. Andersen, et. al., 38 Fla. L. Weekly D931a, Case No. 4D11-2575, issued April 24, 2013: Contractor sued owner for damages caused by breach of contract, and to foreclose a construction lien. The jury awarded the damages for breach of contract, offset by delay damages incurred by the owner, but the court directed a verdict for contractor on owner's counterclaim for damages, based on owner's failure to prove the actual costs of completion and correction of work. As a result, the judgment was reversed and remanded for a new trial on damages and the amount of the construction lien.
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com