Florida Construction Law

West Construction, Inc . v. Florida Blacktop, Inc., 37 Fla. L. Weekly D959c, Case No. 4D11-408, filed April 25, 2012. Reversed final judgment entered for paving subcontractor against contractor for lack of an enforceable contract between the parties. Subcontractor’s bid proposal contained provisions that if the bid was used in any way to “shop” prices for the work, a binding contract would be created. Contractor had used subcontractor’s bid in its successful efforts to obtain a contract with a public entity (The Villages of Royal Palm Beach), and had even identified the subcontractor in its contract proposal, but hired a different paver to perform the work.   In holding that an offer cannot prescribe conditions of rejection so as to turn silence on the part of the offeree into acceptance, it distinguished W. R Townsend Contracting, Inc. v. Jensen Civil Construction, Inc. , 728 So. 2d 297 (Fla. 1 st DCA 1999) in which an express contract was found to have been created by general ...

A claim that someone was fraudulently induced into signing a contract must be plead with specificity.   FDIC v. Fireman's Fund Ins. Co. , 271 F. Supp. 689 (S.D. Fla. 1967). Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Repor Brothers, Inc., v. Donald Moore , 37 Fla. L. Weekly D454b, Case No. 3D10-2251, filed February 22, 2012. Trial court’s summary judgment was reversed and remanded based on a contract indemnity clause that had been construed so as to indemnify the indemnitee against losses resulting from him own negligent acts, absence such intention being expressed in clear and unequivocal terms.  (from RPPTL Subcommittee). 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

If you are renting equipment with an operator, make sure that the operator is adequately covered by insurance. Injury to the operator or damage to person or property caused by the operator can be catastrophic for the lessee if insurance coverage is not present. 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

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

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

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

A contract provision that directly shrinks the statute of limitations for a claim is void.   Section 95.03, Florida Statutes.   Instead, many contracts use notice provisions or other clauses to create waiver arguments.   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

Venue or forum selection clauses are enforceable in Florida courts.   Greenstreet Management, Inc. v. Barker , 833 So.2d 183 (Fla. 5th DCA 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

In Rodriguez v. Builders Firstsource , 26 So.3d 679 (Fla. 4th DCA 2010), the Court held that arbitration provisions in construction contracts that specifically reference the arbitration of issues pertaining to construction were broad enough to allow for the arbitration of mold claims.  This case contradicts other cases holding that mold claims are not arbitrable. 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

If the scope of work an unlicensed contractor provides an owner does not require a license and that the contract does not specifically require that a licensed contractor perform the work, the owner cannot use Section 489.128 to nullify a contract because the contractor is unlicensed.  A-1 Quality Corp. v. Oak Park Terrace, Inc ., 32 So.3d 166 (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 www.trentcotney.com

In Stein v. Paradigm Mirasol , LLC, 2009 WL 3110819 (11th Cir. 2009), the Court held that a force majeure clause (a/k/a Acts of God clause) did not nullify the use of the two-year completion exemption in the Interstate Land Sales Act (ILSA).   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

In Auto-Owners Ins. Co. v. Ace Elec. Service, Inc. , 2009 WL 2602566 (M.D. Fla. 2009), the Court held that an owner could maintain a cause of action against an architect for professional malpractice so long as it was based in contract and not negligence. 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

Here is the final chapter of the Construction Contract Formation video series.  It discusses negotiation of contract terms and scope of work issues.  The direct link is here:   http://www.youtube.com/watch?v=rqnvNV_bqsA . 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

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

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

Florida Hurricane Protection and Awning v. Patina , 35 Fla. L. Weekly D2024a (September 8, 2010). The “mutuality” of attorney fees pursuant to section 57.105(7) was used by the trial court to award fees to the homeowner where the contract provided: “Purchaser is responsible for all costs of collection including Attorney’s fees. And 1.5 % of contract amount.” The original contractor did not complete the performance, so the homeowner brought an action for breach of contract for the cost to complete, some consequential damages for subsequent hurricane damages as well as attorney’s fees based on section reciprocity provision of the statute. The appellate court reversed and remanded the case to vacate the attorney’s fees judgment since there was no action by the contractor to collect the contract balance. Trenton H. Cotney Florida Bar Board Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S Ashley Dr, Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasm...

L & H Construction Company, Inc., v. Circle Redmont, Inc., Case No. 5D-09-3450, filed February 4, 2011: Final judgment finding contractor in breach of its subcontract with stairs manufacturer was reversed. While appellate court agreed that the contract terms were ambiguous regarding subcontractor’s duty to perform installation of the stairs, and parole evidence of the parties’ intent was properly admitted, it found the trial court’s exclusion of evidence of what transpired after the dispute arose resulted in insufficient evidence to support the finding that the contractor had breached the contract. 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

Here is a brief article on the new AIA Initial Decision Maker: http://www.arwmag.com/Articles/Column/BNP_GUID_9-5-2006_A_10000000000000627260 The Initial Decision Maker acts as a dispute resolution intermediary on construction projects to resolve issues before they result in litigation or arbitration

This video discusses how to address pre-existing conditions such as mold, mildew, dry rot, termite damage and water intrusion on Florida construction projects. The video discusses ways to document pre-existing conditions as well as suggest contract provisions that may address potential issues. Here is a direct link: http://video.yahoo.com/watch/7601682/20169963