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construction
ALABAMA COURT HOLDS GENERAL CONTRACTOR NEED NOT PAY SUBCONTRACTOR WHEN AGREEMENT WAS ILLEGAL EVEN WHEN SUBCONTRACTOR PERFORMED WORK

In Construction Services Group, LLC v. MS Electric, LLC, 2019 WL 2710115 (Ala. Civ. App. 2019), the parties entered into an agreement with the Alabama Public School and College Authority. The agreement provided that Construction Services Group, LLC (“Construction Services”) would act as the general contractor on a construction project for additions and alterations to Montevallo Middle School (“the Project”). MS Electric, LLC (“MS Electric”) submitted a bid to perform the electrical work on the Project, which Construction Services accepted.





construction
GEORGIA SUPREME COURT UPHOLDS LONGSTANDING ACCEPTANCE DOCTRINE IN NEGLIGENT CONSTRUCTION CASE
In Thomaston Acquisition, LLC v. Piedmont Construction Group, Inc., Georgia’s Supreme Court addressed the scope of the “acceptance doctrine” in negligent construction cases. 2019 WL 2332043 (Ga. 2019). Thomaston Acquisition, LLC (“Thomaston”) was the subsequent purchaser of an apartment complex and, after purchase, it discovered that the roof and HVAC system had been negligently constructed. Thomaston’s purchase contract with the seller included an “as is” clause. Thomaston filed suit against Piedmont Construction Group, Inc. (“Piedmont”), the original contractor who constr
construction
MIDDLE DISTRICT OF FLORIDA FINDS THAT THE FLORIDA DECEPTIVE TRADE AND UNFAIR PRACTICES ACT PROTECTS GENERAL CONTRACTORS, NOT JUST CONSUMERS
In Continental 332 Fund, LLC, et al. v. Albertelli Construction Inc., et al., the Middle District of Florida analyzed Albertelli Construction, Inc.’s (“Albertelli”) claims against third-party defendant Continental Properties Company, Inc. (“Continental”) 2019 WL 2009369 (M.D. Fla. 2019). General contractor Albertelli filed third-party claims against Continental, one of which alleged a violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Continental then filed a motion to dismiss, arguing that that Albertelli, a business, did not have standing to br
construction
SUPREME COURT OF ALABAMA FINDS THAT AN ARBITRATOR HAS POWER TO DETERMINE LOCATION OF ARBITRATION PROCEEDING BETWEEN CONTRACTORS FROM DIFFERENT STATES
In Alliance Investment Company, LLC v. Omni Construction Company, Inc., the Alabama Supreme Court was faced with analyzing who has the power to determine the location of an arbitration proceeding –the arbitrator or the Madison Circuit Court. 2019 WL 1219416 (Ala. 2019).




construction
ELEVENTH CIRCUIT INTERPRETS GEORGIA’S PROMPT PAY ACT
In Fatt Katt Enterprises, Inc. v. Rigsby Construction, Inc., a dispute arose between the general contractor, Rigsby, and one of its subcontractors, Fatt Katt, over Rigsby’s failure to pay Fatt Katt amounts allegedly owed under a construction contract. 2019 WL 972043 (11th Cir. 2019). Fatt Katt asserted Rigsby violated the State of Georgia’s Prompt Pay Act, O.C.G.A § 13-11-1, et. seq., and sought damages for work that Fatt Katt allegedly performed.




construction
SUBCONTRACTOR MAY BE REQUIRED TO PAY ATTORNEYS’ FEES DESPITE VERDICT IN ITS FAVOR

In United States for Use and Benefit of Cleveland Construction, Inc. v. Stellar Group, Inc., the Middle District of Georgia considered the issue of whether a contract provision allows a contractor to recover attorneys’ fees, even where that contractor did not prevail on all of its claims. 2019 WL 338887 (M.D. Ga. 2019). Stellar Group, Inc. (“Stellar”) subcontracted with Cleveland Construction, Inc. (“Cleveland”) to provide certain...





construction
FLORIDA DISTRICT COURT OF APPEALS AFFIRMS THAT A CONDOMINIUM NEED NOT BE UNINHABITABLE TO BREACH THE IMPLIED WARRANTY OF HABITABILITY

In D.R. Horton, Inc. v. Heron’s Landing Condo. Assn. of Jacksonville, Inc., No. 1D17-1941, 2018 WL 6803698 (Fla. Dist. Ct. App., 1st Dist. 2018), the First District Court of Appeals of Florida affirmed a Florida Circuit Court’s ruling that a breach of the implied warranty of habitability did not require a condominium to be uninhabitable.





construction
ALABAMA SUPREME COURT ENFORCES FORUM SELECTION CLAUSE
In Ex parte Killian Constr. Co., No. 1170696, 2018 WL 5730138, at *1 (Ala. Nov. 2, 2018), the Alabama Supreme Court issued a writ directing the lower court to dismiss the claims against Killian Construction Company (“Killian”) based on improper venue.  The Court found the forum selection clause in the parties contract was enforceable, despite the case having almost no contracts with the contractually selected forum.




construction
SUBCONTRACTOR LEFT WITH NO REMEDY AGAINST HOMEOWNER BASED UPON PLAIN LANGUAGE OF TEXAS’ MATERIALMAN’S LIEN PROVISIONS

In Precision Roofing, Inc., Appellant v. David Zavelson & Tracy Zavelson, Appellees, No. 03-17-00550-CV, 2018 WL 5852680, at *1 (Tex. App. Nov. 9, 2018), the Texas Court of Appeals addressed the validity of a subcontractor’s materialman’s liens.





construction
SOUTH CAROLINA COURT OF APPEALS AFFIRMS DECISION TO ALLOW JURY TO DETERMINE DATE LATENT DEFECTS WERE FIRST DISCOVERED
In Stoneledge at Lake Keowee Owners' Assoc., Inc. v. IMK Dev. Co., LLC, No. 2015-000417, 2018 WL 4905772, at *1 (S.C. Ct. App. Oct. 10, 2018), the South Carolina Court of Appeals affirms the trial court’s decision to deny a request for a directed verdict and allow the jury to determine whether or not the claims were time-barred.




construction
FLORIDA APPELLATE COURT CLARIFIES CHOICE OF DAMAGES A PARTY IS ENTITLED TO FOR MATERIAL BREACH OF CONTRACT
In Forbes v. Prime Gen. Contractors, Inc., No. 2D17-353, 2018 WL 4265287, at *1 (Fla. Dist. Ct. App. Sept. 7, 2018), Florida’s Second District Court of Appeals rejected a trial courts decision to only consider benefit of the bargain damages, holding that in cases involving a material breach of the contract the non-breaching party has the option to elect either benefit of the bargain damages or damages to put them in the place they would have been had the contract never been formed.




construction
COURT OF APPEALS OF TENNESSEE AFFIRMS RULING PRECLUDING RECOVERY BY DEVELOPER DUE TO IT COMMITTING A PRIOR MATERIAL BREACH OF THE SAME CONTRACT
In The Manor Homes, LLC v. Ashby Communities, LLC, et al., No. M201701369COAR3CV, 2018 WL 3814981 (Tenn. Ct. App. Aug. 10, 2018), the Court of Appeals of Tennessee affirmed a ruling precluding recovery by the developer due to it committing a prior material breach of the contract. The case involved the construction of a house in Arrington, Tennessee. Ashby Communities, LLC (“Ashby”) was the developer and owner. Ashby entered into a contract with The Manor Homes, LLC (“Manor Homes”) to serve as its builder.
construction
ALABAMA SUPREME COURT UPHOLDS FORUM SELECTION CLAUSE
In Ex parte Consol. Pipe & Supply Co., Inc., No. 1170050, 2018 WL 3083719 (Ala. June 22, 2018), the Alabama Supreme Court overturned an order granting a motion to transfer venue based upon a valid forum-selection clause. The Court held that the doctrine of forum non conveniens cannot be used to frustrate an otherwise valid forum-selection clause.




construction
ALABAMA LEGISLATURE EXPANDS SCOPE OF HOME BUILDERS LICENSURE BOARD ACT TO CLARIFY SCOPE OF LICENSURE REQUIREMENT FOR HOME IMPROVEMENTS AND NOW GOVERNS ALL RESIDENTIAL ROOFING COMPANIES
The Alabama legislature recently amended provisions of the Home Builders Licensure Board Act (the “HBLB Act”) to expand the scope of home building projects and companies required to comply with the HBLB Act.  The HBLB Act was originally enacted to protect individual homeowners when engaging a Construction company to either build a new home or during a remodel. The HBLB Act required General Contractors to obtain a license from the Home Builders Licensure Board (the “Board”) prior to entering into contracts with perspective clients.
construction
CALIFORNIA SUPREME COURT CLARIFIES EXTENT OF EXCEPTION TO GENERAL RULE REQUIRING TIMELY PAYMENT TO CONTRACTORS
In United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., No. S231549, 2018 WL 2188916 (Cal. May 14, 2018), the Supreme Court of California determined that while a general contractor or owner may withhold monies from subcontractors in circumstances where a dispute has arisen between the parties, the exception is limited to only those amounts actually in dispute.




construction
FOURTH DISTRICT COURT OF APPEAL OF FLORIDA DETERMINES DUTY OF SUBCONTRACTOR TO DEFEND AND INDEMNIFY GENERAL CONTRACTOR DID NOT EXTEND TO PROJECT OWNER

In Blok Builders, LLC v. Katryniok, No. 4D16-1811, 2018 WL 637399 (Fla. Dist. Ct. App. Jan. 31, 2018), the District Court of Appeal of Florida, Fourth District, overturned a trial court’s decision requiring a subcontractor to defend and indemnify a project owner based on a reference in the Subcontract which adopted and incorporated by reference the terms of the General Contract, that include an indemnification provision between the Owner and General Contractor.





construction
COURT OF APPEALS OF TENNESSEE HOLDS IT IS DEFENDANT’S BURDEN TO PRESENT EVIDENCE TO LIMIT A PLAINTIFF’S DAMAGES TO DIMINUTION OF VALUE

In Patrick Durkin v. MTown Construction, LLC, N No. W201701269COAR3CV, 2018 WL 1304922, (Tenn. Ct. App. Mar. 13, 2018), the Court of Appeals of Tennessee overturned an award of property damages which was predicated in part upon the diminution of property value based upon a finding that the defendant had failed to present sufficient evidence establishing the unreasonableness of the costs to repair the real property.





construction
ALABAMA COURT OF CIVIL APPEALS DETERMINES CONTRACTOR IS ENTITLED TO AN AWARD OF PREJUDGMENT INTEREST DESPITE FACTUAL DISPUTE AS TO AMOUNT DUE PURSUANT ORAL CONTRACT

In Ballard v. Lee A. McWilliams Constr., Inc., No. 2160469, 2018 WL 670459, at *1 (Ala. Civ. App. Feb. 2, 2018), the Alabama Court of Civil Appeals determined an award of prejudgment interest is due despite a defense that such damages should not be recoverable given that they were not “certain” at the time of the alleged breach due to the parties’ disagreement on the amount owed under the oral cost-plus contract.

construction
ELEVENTH CIRCUIT COURT OF APPEALS AFFIRMS TRIAL COURT’S INTERPRETATION OF WHAT CONSTITUTES ACCEPTANCE FOR STATUTE OF LIMITATIONS PURPOSES FOR ACTIONS ON PAYMENT BONDS

In Devin B. Strickland v. Arch Insurance Company, No. 17-10610, 2018 WL 327443 (11th Cir. Jan. 9, 2018), the Eleventh Circuit Court of Appeals affirmed the District Court’s determination that Strickland’s claim against the bond surety was time-barred due to his waiting more than one year after the completion of the contract and the acceptance by the public authority to bring suit. 


construction
THIRD DISTRICT COURT OF APPEAL OF FLORIDA HOLDS THAT PARTIES ARE ABLE TO INCLUDE A PROVSION IN A CONTRACT WHICH PRECLUDES THIRD PARTY BENEFICIARY STATUS

In Perez-Gurri Corp. v. McLeod, No. 3D15-2590, 2017 WL 5616924, at *1 (Fla. Dist. Ct. App. Nov. 22, 2017), the District Court of Appeal of Florida, Third District, overturned a trial court’s decision to preclude a general contractor from seeking delay damages on the basis that the subcontractors were not intended third-party beneficiaries of the contract between the general contractor and the owner.




construction
ELEVENTH CIRCUIT COURT OF APPEALS AFFIRMS NECESSITY TO INCLUDE SPECIFIC TIMEFRAME IN CONTRACT IN ORDER TO PROPERLY EXTEND INDEMNITY AND DEFENSE OBLIGATIONS BEYOND SEVEN YEAR STATUTE OF REPOSE FOR ANY CLAIM AGAINST AN ARCHITECT, ENGINEER, OR BUILDER

In Sears, Roebuck & Co. v. Hardin Constr. Grp., Inc., 697 F. App'x 637 (11th Cir. 2017), the United States Court of Appeals for the Eleventh Circuit affirmed the United States District Court for the Southern District of Alabama’s conclusion that a specific written timeframe is necessary in order to extend Alabama’s statute of repose.




construction
LOUISIANA FEDERAL COURT, INTERPRETING A CONSTRUCTION CONTRACT, HOLDS A CONSEQUENTIAL DAMAGES WAIVER MAY NOT BAR A CLAIM FOR LOST PROFITS

In Team Contractors, L.L.C. v. Waypoint Nola, L.L.C., et al., No. CV 16-1131, 2017 WL 4366855 (E.D. La. Sept. 29, 2017), the United States District Court for the Eastern Division of Louisiana concluded that because the contract was ambiguous as to whether the type of lost profits sought in the case were considered “consequential damage” by the terms of the contract, the matter was not ripe for summary judgment as it required it to determine whether the parties intended such damages to fall within the contract’s “consequential damages” waiver.




construction
FIFTH DISTRICT COURT OF APPEAL OF FLORIDA HOLDS THAT SUBCONTRACTS CONTAINING MERGER CLAUSES WILL APPLY RETROACTIVELY TO DATE WORK FIRST COMMENCES AND FAILURE TO ADEQUATELY PLEAD DEFENSE RAISING FAILURE TO COMPLY WITH CONDITION PRECEDENT ACTS AS BAR TO THE OTHERWISE VALID DEFENSE

In Don Facciobene, Inc. v. Hough Roofing, Inc., No. 5D15-1527, 2017 WL 3091578 (Fla. Dist. Ct. App. July 21, 2017), the Fifth District Court of Appeal of Florida held that although a valid merger clause in subcontract signed after the subcontract was almost completed, it applied retroactively to the date work first commenced.  However, the Court held that failure by general contractor to plead an affirmative defense regarding a condition precedent in the subcontract with enough specificity and particularity as required under Florida Rules of Civil Procedure

construction
FEDERAL COURT HOLDS AN ALABAMA SUBCONTRACTOR WITHOUT A PROPER LICENSE CANNOT ENFORCE ITS CONTRACT WITH A ROOFING SUPPLIES DISTRIBUTOR

In Am. Builders & Contractors Supply Co. v. Precision Roofing & Consulting, LLC, No. 2:17CV97-WHA, 2017 WL 3431844, (M.D. Ala. Aug. 9, 2017), the United States District Court for the Middle District of Alabama dismissed a breach of contract claim filed against a distributor that provided supplies to a roofing subcontractor in light of the plaintiff, a subcontractor, having failed to obtain its own license at the time work commenced.




construction
FIFTH CIRCUIT REFUSES TO BROADEN SCOPE OF AFFIRMATIVE DUTY TO WARN BASED ON CONTRACTOR’S EXPERTISE

In LaShip, LLC v. Hayward Baker, Inc., No. 15-30816, 2017 WL 829503 (Mar. 1, 2017), the Fifth Circuit held a commercial contractor was not required to warn the owner of alleged defects in the design specifications of foundation columns that were provided by the engineer despite the fact the contractor had specialized experience in foundation design.  The Fifth Circuit refused to broaden the affirmative tort duty to warn based on a party’s expertise and upheld the statutory protections for the contractor.




construction
FLORIDA DISTRICT COURT HOLDS ARBITRATION PROVISION IN SALES AGREEMENT IS VOID AS AGAINST PUBLIC POLICY

In Anderson v. Taylor Morrison of Florida, Inc., No. 2D16-314, 2017 WL 2374404 (Fla. Dist. Ct. App. May 31, 2017), the Second District Court of Appeal of Florida held an arbitration provision in a homeowner’s sales agreement was void as against public policy because it limited the homeowner’s statutory remedies. 




construction
FLORIDA APPELLATE COURT FINDS POST-CLOSING REPAIR WORK MAY DELAY START OF CONSTRUCTION DEFECT STATUTE OF REPOSE

In Busch v. Lennar Homes, LLC, No. 5D16-1626, 2017 WL 1372085 (Fla. Dist. Ct. App. April 13, 2017), Florida’s Fifth District Court of Appeals found the trial court improperly dismissed the Homeowner’s complaint regarding construction defects based on the ten year statute of repose.  The Court determined the Homeowner’s complaint was not barred by the ten year statute of repose, because the purchase contract contained a provision allowing the builder to correct defects within a reasonable time after closing and the complaint did not conclusively establish that such

construction
NEW YORK APPELLATE COURT FINDS CONTRACTOR NOT LIABLE FOR DEFECTS WHEN FOLLOWING OWNER’S INSTRUCTIONS UNDER DESIGN SPECIFICATION CONTRACT
In CGM Const., Inc. v. Sydor, 42 N.Y.S.3d 407 (N.Y. App. Div. 2016), the New York Supreme Court, Appellate Division for the Third Department, held a contractor was not liable for alleged inadequate work performed on the owner’s property, because the contractor followed the owner’s instructions when performing the work.  The Court found the contract was a design specification contract, which allows a contractor not to be held liable for defects when the contractor follows the plans and specifications provided.



construction
FIFTH CIRCUIT ADDRESSES THE TRIGGER FOR LIEN FILINGS

     In Golden Nugget Lake Charles, LLC v. W.G. Yates & Sons Constr. Co., No. 16-30496, 2017 WL 892407 (5th Cir. Mar. 6, 2017), the Fifth Circuit Court of Appeals determined the 60-day period for general contractors to file a lien against a project owner’s property under Louisiana Private Works Act § 9:4822(B) does not begin to run until the owner files either a Notice of Termination or a Notice of Substantial Completion.  The Court rejected the owner’s interpretation of the statute that the 60-day period begins when the event of substantial

construction
FLORIDA APPEALS COURT HOLDS CONTRACTOR NOT LIABLE FOR PLAYGROUND DEFECTS AFTER CITY FAILED TO GIVE CONTRACTOR NOTICE AND OPPORTUNITY TO CURE DEFECTS
In Magnum Construction Management Corp. v. City of Miami Beach, No. 3D15-2239, 2016 WL 7232268 (Fla. Dist. Ct. App. Dec. 14, 2016), the Third District Court of Appeal of Florida found the City of Miami Beach was precluded from recovering damages for construction defects...
construction
NEVADA SUPREME COURT DETERMINES WHEN A NOTICE OF COMPLETION IS “ISSUED” FOR PURPOSES OF COMMENCEMENT OF ACTIONS UNDER NRS 11.2055
In Dykema v. Del Webb Communities, Inc., No. 69335, 2016 WL 7626184 (Nev. Dec. 29, 2016), the Nevada Supreme Court clarified when a notice of completion is “issued” under NRS 11.2055(1)(b), which establishes the date of substantial completion for statute of repose purposes.
construction
COLORADO APPELLATE COURT HOLDS THE STATUTE OF REPOSE FOR A SUBCONTRACTOR IS TRIGGERED WHEN THAT SUBCONTRACTOR SUBSTANTIALLY COMPLETES ITS OWN WORK

  In Sierra Pacific Industries v. Bradbury, 2016 WL 4699116 (Colo. App. September 8, 2016), the Colorado Court of Civil Appeals, Division I, upheld the district court’s entry of summary judgement in favor of a subcontractor on an indemnification claim for damages, costs and expenses related to an underlying construction defect claim brought by the condominium association based on the statute of repose.

construction
TEXAS SUPREME COURT HOLDS GENERAL CONTRACTOR NOT ENTITLED TO INDEMNITY FROM MANUFACTURER OF DEFECTIVE PRODUCT

    In Centerpoint Builders GP, LLC v. Trussway, Ltd., 2016 WL 3413329 (Tex. 2016), the Texas Supreme Court held the general contractor, Centerpoint Builders, LLC (“Centerpoint”), was not a “seller” under the Texas Products Liability Act and could not obtain indemnity from the manufacturer of the defective product even though Centerpoint had not altered the product in any form.   

construction
NEW YORK APPELLATE COURT REVERSES $209,000.00 AWARD TO SUBCONTRACTOR DUE TO THE SUBCONTRACTOR’S FAILURE TO COMPLY WITH NOTICE REQUIREMENT IN THE CONSTRUCTION CONTRACT

  In Schindler v. Tully Construction Co., 139 A.D.3d 930 (May 18, 2016), the New York Supreme Court, Appellate Division, reversed a trial court’s award of $209,000.00 in delay damages in favor of a subcontractor on a public contract in a nonjury trial.

construction
THE TEXAS COURT OF APPEALS, RELYING ON EXPERT TESTIMONY, HOLDS A COUNTY’S IMMUNITY IS WAIVED FOR BOTH DELAY AND DISRUPTION DAMAGES

In County of Galveston v. Triple B Services, LLP, 2016 WL 3025261 (Tex. Civ. App. May 26, 2016), the Court of Appeals of Texas held a contractors’ breach of contract claim against a county fell within the scope of sovereign immunity waiver for construction contracts.  The Court determined the disruption damages sought by the contractor were "a direct result of owner-caused delays,” and the Texas statute providing limited waiver of sovereign immunity for delay damages was applicable.

construction
THE FIFTH CIRCUIT COURT OF APPEALS REVERSES $1.29 MILLION JUDGMENT ENTERED IN FAVOR OF CONTRACTOR

In Dallas/Fort Worth International Airport Board v. INET Airport Systems, Incorp., et al., 2016 WL 1445205 (5th Cir. April 12, 2016), the Fifth Circuit Court of Appeals reversed a trial court’s $1.29 million judgment in favor of the contractor and against the owner.  The Fifth Circuit determined genuine issues of fact remained regarding whether the owner first breached the contract by failing to cooperate with the contractor to resolve change orders.  

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