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construction
IDAHO SUPREME COURT RULES THAT STATUTE OF LIMITATIONS BEGAN TO RUN WHEN LANDSLIDE DAMAGED LOT, RATHER THAN WHEN DAMAGE TO HOME LATER MANIFESTED

In 2014, Amy and William Dempsey purchased a vacant lot in a subdivision. The Dempseys hired an architect to design a home, who then contracted with Briggs Engineering to prepare plans for site grading, drainage, and erosion control. In 2015, the Dempseys entered into a contract with BrunoBuilt, Inc. to build the home, which called for the Dempseys to transfer ownership of the lot to BrunoBuilt via a quitclaim deed. The contract noted that the Dempseys would pay for the home upon its completion, and then BrunoBuilt would transfer ownership of the property back to the Dempseys.

construction
TEXAS COURT AFFORDS IMMUNITY TO CONSTRUCTION COMPANY FOR PERSONAL INJURY SUIT ARISING FROM COMPLETED WORK COMPLIANT WITH STATE AGENCY’S CONTRACT

In A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717, 719 (Tx. App. 2022), a Texas Court of Appeals found a road contractor was entitled to statutory immunity for a personal injury suit after the completion of the project, as it built the road in compliance with the Texas Department of Transportation’s (“TxDOT”) design.  In an issue of first impression, the Court held immunity was not limited only to ongoing construction, but also applied to accidents occurring after completion. 

construction
APPEALS COURT OF MASSACHUSETTS APPLIES STATUTE OF REPOSE TO DISMISS COUNTS FOR NEGLIGENCE, BREACH OF CONTRACT, AND INDEMNIFICATION BECAUSE NEGLIGENCE WAS AT ISSUE IN EACH COUNT

In Univ. of Massachusetts Bldg. Auth. v. Adams Plumbing & Heating, Inc., 102 Mass. App. Ct. 1107 (2023), the Appeals Court of Massachusetts upheld the dismissal of the Plaintiffs’ claims because negligence was at issue in each count and thus barred by the Massachusetts’ statute of repose.

construction
SUPREME COURT OF TEXAS APPLIES ARBITRATION CLAUSE IN PURCHASE AGREEMENT AGAINST NON-SIGNATORY MINOR CHILDREN UNDER DIRECT BENEFIT ESTOPPEL THEORY

In Taylor Morrison of Texas, Inc. v. Skufca as Next Friend of KSX, the Supreme Court of Texas determined minor children who join their parents as plaintiffs in breach of contract claims based on construction defects in the home they resided in may be subject to arbitration clauses within the applicable purchase agreement based on the theory of direct-benefits estoppel. 2023 WL 443852, at *2 (Tex. Jan. 27, 2023).  Plaintiffs Jack and Erin Skufca (the “Parents”) and their minor children (collectively, “Plaintiffs”) sued Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities-League City, Ltd. (collectively, “Defendants”) for alleged construction defects in the home they purchased from Defendants.  The purchase agreement for the home contained an arbitration clause which required arbitration of “any and all claims, controversies, breaches or disputes by or between the parties hereto” that “aris[e] out of or relate[ ] to this purchase agreement, the property, the subdivision or community of which the property is a part, the sale of the property by seller, or any transaction related hereto,” whether those claims were based in “contract, tort, statute, or equity.”

construction
NEW JERSEY COURT WEIGHS IN ON RISK ALLOCATING PAY IF PAID CONTRACTUAL PROVISIONS FOR THE FIRST TIME

In JPC Merger Sub LLC v. Tricon Enterprises, Inc., 2022 WL 17479912 (N.J. Super. Ct. App. Div. Dec. 7, 2022), the Appellate Division of the Superior Court of New Jersey upheld the enforceability of pay-if-paid provisions in subcontracts so long as the terms are “clear” and “unambiguous.”  Pay-if-paid provisions mean a subcontractor gets paid by the general contractor only if the owner pays the general contractor for that subcontractors work.  These provisions are meant to shift the risk of the owners nonpayment under the subcontractor from the contractor to the subcontractor.  These provisions are unenforceable in some states, enforceable as written in others, and enforceable only if the provision is clear and unambiguous in other states. Prior to this case, New Jersey had not weighed in on the issue through either statute or judicial opinion.

construction
COURT OF APPEALS OF NORTH CAROLINA PERMITS WATERPROOFING SUBCONTRACTOR TO PURSUE SOME THIRD-PARTY CLAIMS AGAINST FELLOW SUBCONTRACTORS

In Ascot Corporation, LLC v. I&R Waterproofing, Inc., the Court of Appeals of North Carolina recently held that a subcontractor responsible for waterproofing could properly pursue the manufacturer of the waterproofing system for breach of the implied warranty of merchantability, but not for breach of express warranty, contribution, or negligence-based indemnity. Additionally, the Court held the subcontractor could pursue a subcontractor responsible for landscaping for negligence-based indemnity and contribution.  No. COA22-19, 2022 WL 16937546, at *1 (Nov 15, 2022).

construction
INDIANA COURT OF APPEALS AFFIRMS PARTIAL SUMMARY JUDGMENT FOR GENERAL CONTRACTOR SUED BY SUBCONTRACTOR EMPLOYEE TO WHOM THE GENERAL CONTRACTOR OWED NO CONTRACTUAL DUTY

In Tinsley-Williamson ex rel. Tinsley v. A.R. Mays Construction, Inc., 195 N.E.3d 891 (Ind. Ct. App. 2022), the Court of Appeals of Indiana affirmed partial summary judgment in favor of A.R. Mays Construction, Inc. (“A.R. Mays”), a general contractor, on the ground that neither it nor any of its subcontractors had contracted with the company that employed the Plaintiff Ethan Tinsley (“Mr. Tinsley”).  Therefore, the Court held that A.R. Mays owed no duty to Mr. Tinsley.

construction
TENNESSEE COURT OF APPEALS UPHOLDS JUDGMENT HOLDING THAT A CONTRACT WITH A TARGET COMPLETION DATE AND START IMMEDIATELY LANGUAGE CONTAINED AN IMPLIED TIME IS OF THE ESSENCE TERM

In Franks v. Bilbrey, the Tennessee Court of Appeals held that a construction contract containing a target construction completion date and the phrase “start immediately” contained an implied “time is of the essence” term, which the contractor breached by delaying completion well beyond the target completion date. No. M2021-00766-COA-R3-CV, 2022 WL 4588871, at *1 (Tenn. Ct. App. Sept. 30, 2022).


construction
FLORIDA DISTRICT COURT OF APPEALS REVERSES GRANT OF SUMMARY JUDGMENT TO DEVELOPER THAT CHALLENGED DEVELOPMENT DENSITY ORDINANCE UNDER STATUTORY INORDINATE BURDEN STANDARD

In a ruling on an interlocutory appeal, the Florida District Court of Appeal for the Fifth District recently reversed a summary judgment in favor of Waters Mark Development Enterprises, LC (“WMDE”) against Brevard County (“the County”) because  WMDE had not proven that the County’s residential development density standard constituted an inordinate burden on WMDE’s use of its property intended for a subdivision. Brevard County v. Waters Mark Development Enterprises, LC, No. 5D21-1809, 2022 WL 41111172, at *1 (Fla. Dist. App. Sept. 9, 2022).

construction
COURT OF APPEALS OF MISSISSIPPI HOLDS THAT A PARTY SEEKING TO COMPEL ARBITRATION HAS NOT INVOKED THE LITIGATION PROCESS WHEN IT ENTERS DEFAULT AND RESPONDS TO DISPOSITIVE MOTIONS WITH A SPECIFIC RESERVATION OF ITS RIGHT TO ARBITRATION

The Mississippi Court of Appeals recently held that a general contractor that sought to compel arbitration in a breach of contract dispute between it and another contractor did not waive its right to pursue arbitration by invoking the litigation process, when it entered a notice of default (that it later agreed to withdraw) and defended against its opponent’s dispositive and procedural motions, while insisting it did not waive its right to arbitration. S. Cent. Heating, Inc. v. Clark Constr. Inc. of Miss., NO. 2021-CA-00285-COA, 2022 WL 2313877, at *1 (Miss. Ct. App. Jun. 28, 2022).

construction
SUPREME COURT OF TENNESSEE REVERSES LOWER COURT’S LIMITATION OF ATTORNEY’S FEES AND COSTS AWARD TO A HOMEOWNER

In Donovan v. Hastings, the Supreme Court of Tennessee analyzed whether the trial and appellate courts properly limited an award of attorney fees and costs under Tennessee Code § 20-12-119(c) to a plaintiff homeowner to those incurred after the date an amended countercomplaint was filed by the defendant contractor. 2022 WL 12301177, at *1 (Tenn. June 27, 2022).

construction
FLORIDA COURT OF APPEAL CLARIFIES TIMING RULE IN CONSTUCTION LIEN STATUTE

In A. Alexis Varela, Inc. v. Pagio, No. 5D21-2077, 2022 WL 1592482 (Fla. Dist. Ct. App. May 20, 2022), the Florida Fifth District Court of Appeal reversed a trial court’s order dismissing a contractor’s lien foreclosure claim. The Court of Appeal stated that the trial court erred in computing the deadline for the contractor to deliver an affidavit to the homeowners pursuant to Florida’s construction lien statute. The Court of Appeal held the affidavit was timely delivered according to Florida’s rules for the computation of time.

construction
FLORIDA APPELLATE COURT UPHOLDS BUILDER’S 18 MILLION DEFAULT JUDGMENT AGAINST CHINESE DRYWALL SUPPLIER

In KB Home Fort Myers LLC v. Taishan Gypsum Co., No. 2D21-384, 2022 WL 1099385 (Fla. Dist. Ct. App. Apr. 13, 2022), Florida’s Second District Court of Appeal reversed a trial court’s decision to vacate an $18 million default judgment against a supplier that sold defective drywall. The Court of Appeal reversed the trial court because the default judgment was not void and the drywall supplier waited over seven years to seek relief.

construction
FLORIDA COURT OF APPEAL SENDS CONDOMINIUM ASSOCIATION TO ARBITRATION PURSUANT TO THE CONDOMINIUM DECLARATION
In LEN-CG S., LLC v. Champions Club Condo. Ass'n, Inc., No. 5D21-1294, 2022 WL 980910 (Fla. Dist. Ct. App. Apr. 1, 2022), Florida’s Fifth Circuit Court of Appeals recently reversed a trial court’s decision to deny a developer’s and contractor’s motion to compel arbitration. The Court of Appeal held the arbitration provision in the condominium declaration binds the condominium association, which brought claims against the contractor and developer on its own behalf and as the class representative of the unit owners.

construction
FLORIDA APPELLATE COURT REVERSES JURY VERDICT IN FAVOR OF WINDOW SUPPLIER BASED ON EVIDENCE ADMITTED AT TRIAL

In Hernandez, et al., v. CGI Windows and Doors, Inc., No. 3D20-1318, 2022 WL 610122 (Fla. Dist. Ct. App. Mar. 2, 2022), Florida's Third District Court of Appeal reversed a jury verdict in favor of a window supplier and remanded the case for a new trial. The Court of Appeal held the trial court abused its discretion in allowing inadmissible unsworn pleadings showing other subcontractors on the project had been previously dismissed from the case pursuant to a stipulation for settlement.

construction
TENNESSEE COURT OF APPEALS HOLDS ALABAMA BASED CONTRACTOR MUST LITIGATE IN DAVIDSON COUNTY

The Tennessee Court of Appeals recently held Tennessee courts could exercise personal jurisdiction over Pierce & Allred Construction, Inc. (the “Defendant”), an Alabama-based company. Baskin v. Pierce & Allred Construction, Inc., No. M202100144COAR3CV, 2022 WL 258631 (Tenn. Ct. App. Jan. 28, 2022). The Court of Appeals also held Davidson County, Tennessee was a proper venue for the action, even though the allegedly defective construction took place in Alabama. This ruling reversed the trial court’s order granting the Defendant’s Motion to Dismiss for lack of personal jurisdiction and improper venue.

construction
FLORIDA COURT OF APPEAL SAYS NEIGHBORHOOD ASSOCIATION IS BOUND BY ARBITRATION AGREEMENT

In Lennar Homes, LLC v. Martinique at the Oasis Neighborhood Association, Inc., No. 3D20-1732, 2021 WL 6057113 (Fla. Dist. Ct. App. Dec. 22, 2021), the Third District Court of Appeal reversed the trial court’s decision to deny Lennar Homes, LLC’s (“Lennar Homes”) Motion to Compel Arbitration. The Court of Appeal held the arbitration provision was enforceable against Martinique at the Oasis Neighborhood Association, Inc. (“Neighborhood Association”).

construction
FLORIDA APPELLATE COURT UPHOLDS DISMISSAL OF CONTRACTOR’S CASE

In Gen. Contractors of Cent. Fla. LLC v. Heritage Prop. & Cas. Ins. Co., No. 3D21-34, 2021 WL 5617450 (Fla. Dist. Ct. App. Dec. 1, 2021), the Third District Court of Appeal affirmed the lower court’s decision to dismiss General Contractor of Central Florida’s (“General Contractors”) lawsuit seeking payment for work it performed on its client’s home.

construction
ALABAMA SUPREME COURT DISMISSES APPEAL BROUGHT BY CONTRACTOR DUE TO UNRESOLVED COUNTERCLAIMS

Builder Sys., LLC v. Klamer, No. 1200433, 2021 WL 4472047 (Ala. Sept. 30, 2021) concerned a  contractor’s appeal from an order enforcing an arbitration award in favor of the homeowners. The Klamers purchased a home built with defective drywall. In 2011, they joined a class action against the manufacturer of the drywall. The class action settled, and, as part of the settlement, the plaintiffs chose to renovate their home, including replacing the defective drywall, some fixtures, and their HVAC unit.

construction
ALABAMA SUPREME COURT REVERSES JUDGMENT AGAINST SUBCONTRACTOR AND DENIES REQUEST TO PIERCE THE CORPORATE VEIL OF CONTRACTOR

In Childs v. Pommer, the Supreme Court of Alabama reviewed two appeals from judgment in connection with a construction contract. 2021 WL 4022619, at *1. With respect to the first appeal, the Supreme Court analyzed whether a subcontractor could be liable under a breach-of-contract theory when he was not a party to the contract. Under the second appeal, the Supreme Court analyzed whether the Plaintiffs should be allowed to pierce the corporate veil of the contractor company to pursue a post-judgment course of action against its sole owner.

construction
FLORIDA APPELLATE COURT AFFIRMS SUMMARY JUDGMENT IN FAVOR OF GENERAL CONTRACTOR BASED ON STATUTE OF LIMITATIONS DEFENSE IN LATENT DEFECT CASE

In The Cottages at Stoney Creek Condominium Association, Inc., et al. v. JDR Construction, LLC, et al., No. 1D20-956, 2021 WL 2209851 (Fla. Dist. Ct. App. June 1, 2021), the Florida First District Court of Appeal affirmed the trial court’s decision granting summary judgment in favor of a general contractor on a statute of limitations defense. The trial court granted summary judgment in favor of the general contractor based on its determination that the owner knew or should have known of the alleged defects more than four years before suit was commenced. The trial court’s order discussed whether a six-year-old report established that the condominium association knew or should have known of the defects at issue in the case.

construction
TENNESSEE APPELLATE COURT REVERSES TRIAL COURT’S DENIAL OF ATTORNEY’S FEES FOR PLAINTIFF BASED ON PROVISION OF CONSTRUCTION CONTRACT

In Jones v. Reda Homebuilders, Inc., the Court of Appeals of Tennessee, at Nashville, analyzed whether the trial court properly denied Plaintiffs’ Motion for Attorney’s Fees based on the language of the construction contract. 2021 WL 2375883, at *1 (Tenn. Ct. App. June 10, 2021). The appellate court additionally analyzed whether the trial court’s award of damages was speculative.

Plaintiffs Frederick and Kimberly Jones (“Plaintiffs”) entered into a “New Construction Purchase and Sale Agreement” (the “Contract”) with the Defendant home builder, Reda Homebuilders, Inc. (“Reda”), on or about April 21, 2014. Reda provided Plaintiffs with a one-year builder’s warranty at closing. Within the applicable one-year warranty period, Plaintiffs discovered numerous defects in the construction of the home and brought suit against Reda for breach of contract, breach of warranty, and negligence.





construction
TENNESSEE APPELLATE COURT AFFIRMS TRIAL COURT’S HOLDING THAT OWNER OF CORPORATION ENGAGED AS CONTRACTOR ON CONSTRUCTION PROJECT COULD NOT BE HELD PERSONALLY LIABLE FOR CORPORATION’S ALLEGED STATUTORY VIOLATIONS

In Clarksville Towers, LLC v. Straussberger, the Court of Appeals of Tennessee analyzed whether the trial court properly granted summary judgment for the owner of a corporation which was engaged as the contractor in a multi-million-dollar construction project. 2021 WL 1884636, at *1 (Tenn. Ct. App. May 11, 2021). The plaintiff, Clarksville Towers, LLC (“Clarksville Towers”), sought to hold the owner, John Straussberger, personally liable for the corporation’s alleged violations of the Tennessee Contractors Licensing Act (“TCLA”) and the Tennessee Consumer Protection Act (“TCPA”). The trial court determined the owner could not be held personally liable for the corporation’s alleged violations and granted summary judgment on the claims against Straussberger. The Court of Appeals of Tennessee affirmed the grant of summary judgment.

construction
SUPREME COURT OF TEXAS HOLDS THAT APPELLATE COURT ERRED IN REVERSING GRANT OF SUMMARY JUDGMENT FOR GENERAL CONTRACTOR ON NEGLIGENCE CLAIM BROUGHT BY EMPLOYEE OF ITS INDEPENDENT CONTRACTOR

In JLB Builders, L.L.C. v. Hernandez, the Supreme Court of Texas analyzed whether the Texas Court of Appeals erred in finding a fact issue existed as to whether a general contractor on a construction project owed a duty of care to a concrete subcontractor’s employee who was injured on the job. 2021 WL 1822947, at *1 (Tex. May 7, 2021).

construction
SOUTHERN DISTRICT OF FLORIDA HOLDS THAT PEDESTRIAN BRIDGE CONSULTANT IS NOT SUBJECT TO PROFESSIONAL NEGLIGENCE STATUTE OF LIMITATIONS DUE TO LACK OF CONTRACTUAL PRIVITY WITH BRIDGE OWNER

In March 2018, a pedestrian bridge collapsed at Florida International University (“FIU”) in Miami-Dade County, Florida. Magnum Construction Management, LLC v. WSP USA Solutions, Inc., 2021 WL 799448 (S.D. Fla. 2021). FIU had retained Plaintiff Magnum Construction Management, LLC (“Magnum”) to design and construct an elevated pedestrian bridge. Magnum contracted with FIGG Bridge Engineers, Inc. (“FIGG”) to perform all design and engineering services for the bridge. FIGG then contracted with The Louis Berger Group, Inc. (“Louis Berger”) for an independent peer review of certain aspects in the bridge’s design.

construction
MISSISSIPPI APPELLATE COURT HOLDS DEFECTIVE WORK PERFORMED BY SUBCONTRACTOR CONSTITUTED MATERIAL BREACH PREVENTING IT FROM RECOVERING ALLEGED ACCELERATION DAMAGES

In Kanza Constr., Inc. v. Kansas City S. Railways Co., the Mississippi Court of Appeals analyzed whether the circuit court properly granted partial summary judgment when it found, as a matter of law, that a construction company was not entitled to acceleration damages on the contract it breached. 2021 WL 670993 (Miss. Ct. App. Feb. 22, 2021).

construction
FLORIDA COURT RULES THAT GENERAL CONTRACTOR FAILED TO ADEQUATELY SPECIFY THE SCOPE OF ITS SUBCONTRACT RESULTING IN UNEXPECTED PAYOUT TO SUBCONTRACTOR

In Paschen v. B&B Site Development, Inc., the parties to a subcontract disagreed over the scope of work required for the project. 2021 WL 359487 (Fla. App. Ct. 2021). Plaintiff F.H. Paschen, S.N. Nielson & Associates (“Paschen”) worked as the general contractor for the United States Postal Service to perform construction work at a post office in Okeechobee, Florida. Paschen’s contract with the Postal Service required it to “verify all dimensions shown of existing work” and to report any discrepancies prior to submitting a price proposal.

construction
FLORIDA APPELLATE COURT FINDS SETOFF AWARD WAS RELEVANT CONSIDERATION FOR DETERMINING PREVAILING PARTY UNDER LIEN ENFORCEMENT STATUTE

In Hayward Baker, Inc. v. Westfield Ins. Co., the Florida District Court of Appeal, Second District, reversed a lower court’s order denying a subcontractor’s motion for attorneys’ fees under Florida Statutes, Section 713.29.  2020 WL 7767859, at *1 (Fla. Dist. Ct. App. Dec. 30, 2020). The underlying case stemmed from construction of an addition to University Community Hospital in Carrollwood, Florida.

construction
UNITED STATES DISTRICT COURT DENIES GENERAL CONTRACTOR’S SUMMARY JUDGMENT MOTION BASED ON STATUTE OF REPOSE ISSUES DUE TO CONTRACTOR’S ACTUAL KNOWLEDGE OF CONSTRUCTION DEFECTS AND MISREPRESENTATIONS OF THAT KNOWLEDGE

In Bristol Southside Association, Inc. v. Meridian Construction & Development, LLC, the United States District Court for the Northern District of Alabama denied the Defendant’s Motion for Summary Judgment, which it supported by arguing the Plaintiff’s claims were barred under Alabama’s statute of repose. 2020 WL 6712270.

construction
TENNESSEE APPELLATE COURT SETS LOW THRESHOLD FOR SATISFYING NOTICE AND OPPORTUNITY TO CURE REQUIREMENTS FOR ALLEGED CONSTRUCTION DEFECTS

In Liberty Constr. Co., LLC v. Curry, the Tennessee Court of Appeals, Nashville Division, reversed a lower court’s holding that the owners of a commercial building failed to provide a construction company with notice and a reasonable opportunity to cure a defect it allegedly caused. 2020 WL 6158461, at *1 (Tenn. Ct. App. Oct. 21, 2020).

construction
GEORGIA APPELLATE COURT FINDS QUESTION OF MATERIAL FACT REGARDING WHETHER A MATERIALMEN’S LIEN ATTACHES BASED UPON ENTITY NAME IN SUBCONTRACT

In Optum Construction Group, LLC et al. v. City Electric Supply Company, 2020 WL 5792581 (Ga. App. 2020), appellee City Electric Supply Company (“City Electric”) furnished materials to Palmetto Power Services, LLC (“Palmetto Services”), an entity that represented itself as a subcontractor for a hotel construction project on which appellant Optum Construction Group, LLC (“Optum”) was the general contractor. After Palmetto Services failed to pay City Electric for the materials, City Electric sued Palmetto Services and filed a materialman's lien on the hotel and real estate (“the Property”) on which it was constructed. Optum and its surety, Fidelity and Deposit Company of Maryland (“Fidelity”), discharged the lien by filing a bond.

construction
FLORIDA APPELLATE COURT INTERPRETS SECTION 713.18, FLORIDA STATUTES, TO PERMIT SERVICE ON LAST KNOWN ADDRESS OF PARTY, DESPITE FILING OF NOTICE OF COMMENCEMENT LISTING DIFFERING ADDRESS
In Fettig's Constr., Inc. v. Paradise Properties & Interiors LLC, the Florida District Court of Appeals, Fourth District, analyzed whether absence of a notice of commencement is a prerequisite to a contractor’s ability to serve its claim of construction lien on the last known address of the party to be served pursuant to the requirements of section 713.18(3)(a), Florida Statutes (2019). 2020 WL 4667654, at *1 (Fla. Dist. Ct. App. Aug. 12, 2020). The appellate court granted the writ of certiorari brought by the Petitioner Fettig’s Construction, Inc. (“Fettig’s”), which challenged the trial court’s partial final judgment dismissing Fettig’s lien foreclosure action and discharging its recorded lis pendens and lien. The trial court’s dismissal was based on its finding that Fettig’s claim was barred by the statute of limitations because he “failed to properly serve the claim of lien or contractor's affidavit in accordance with the provisions of section 713.18, Florida Statutes (2019).”
construction
FLORIDA APPELLATE COURT HOLDS PROPERLY PERFECTED CLAIM OF CONSTRUCTION LIEN COULD RELATE BACK TO DATE OF FILING OF NOTICE OF COMMENCEMENT THAT WAS NOT SIGNED BY PROPERTY OWNER PURSUANT TO 713.13(1)(g), FLORIDA STATUTES

In Edwin Taylor Corp. v. Mortg. Elec. Registration Sys., Inc., the Florida District Court of Appeals, Third District, analyzed whether a subcontractor’s properly perfected claim of a construction lien could relate back to the date the general contractor recorded a notice of commencement that was not signed by the property owner for purposes of determining the priority of competing interests in lien foreclosure action. 2020 WL 3261177 (Fla. Dist. Ct. App. June 17, 2020). The issue was one of first impression for the Court.

construction
FLORIDA APPELLATE COURT AFFIRMS DENIAL OF ATTORNEY’S FEES TO A JUNIOR INTEREST HOLDER IN A CONSTRUCTION LIEN ENFORCEMENT ACTION UNDER SECTION 713.29, FLORIDA STATUTES

In Decks N Such Marine, Inc. v. Daake, the District Court of Appeal of Florida, First District, considered whether a trial court’s award of attorney’s fees to a junior interest holder in a construction lien enforcement action was proper under Section 713.29, Florida Statutes (2018). 2020 WL 2507500 (Fla. 1st Dist. Ct. App. 2020). The Appellate Court found that junior interest holders are not entitled to attorney’s fees as the prevailing party in an action brought to enforce a construction lien.

construction
ARBITRATION PROVISION IN UNSIGNED SUBCONTRACT NOT ENFORCEABLE, DESPITE PART PERFORMANCE BY SUBCONTRACTOR, WHEN EXPRESS TERMS OF SUBCONTRACT REQUIRED SIGNATURE

In Baker v. Rabren General Contractors, Inc., 2020 WL 12145326 (M.D. Ala. 2020), the United States District Court for the Middle District of Alabama analyzed whether an arbitration provision in an unsigned subcontract was enforceable. Defendant Rabren General Contractors, Inc. (“Rabren”) filed a Motion to Compel Arbitration in the suit brought against it by Plaintiff Charles Baker (“Baker”), pursuant to an arbitration provision in an unexecuted written contract drafted by Rabren. The subcontract purported to be for concrete work by Baker on a construction project Rabren had been awarded to build a new high school in Auburn, Alabama (the “Auburn Project”).

construction
FLORIDA APPELLATE COURT AFFIRMS DISCHARGE OF SUBCONTRACTOR’S MECHANIC’S LIEN WHEN SUBCONTRACTOR FAILED TO SHOW GOOD CAUSE FOR ITS FAILURE TO FORECLOSE

In Management & Consulting, Inc. v. Tech Electric, Inc., the District Court of Appeal of Florida, Third District, reviewed a lower court’s denial of a motion for discharge of a mechanic’s lien. 2020 WL 1540958 (Fla. 3d Dist. Ct. App. 2020). The Appellate Court found a subcontractor failed to comply with the requirements of section 713.21(4), Florida Statutes, when it asserted the validity of its mechanic’s lien, but failed to show good cause as to why its lien had not been enforced or file a foreclosure suit within the statutory timeframe.





construction
SUPREME COURT OF MISSISSIPPI FINDS THAT ITS STATE BOARD OF CONTRACTORS VIOLATED PROCEDURAL DUE PROCESS

In Mississippi State Board of Contractors v. Hobbs Construction, LLC, the Supreme Court of Mississippi analyzed whether the Mississippi State Board of Contractors (“the Board”) deprived Hobbs Construction, LLC (“Hobbs”) of its procedural right to due process. 2020 WL 1081410 (Miss. 2020).





construction
FLORIDA COURT RECOGNIZES GENERAL CONTRACTOR’S RIGHT TO COMMON LAW INDEMNITY
In Brother’s Painting & Pressure Cleaning Corp., Appellant v. Curry-Dixon Construction, LLC, et. al., Appellees, the general contractor Curry-Dixon Construction, LLC (“Curry-Dixon”) and Brother’s Painting & Pressure Cleaning Corporation (“Brother’s Painting”) were both defendants in a lawsuit involving negligence during the course of construction renovations. 2020 WL 559193 (Fla. App. Ct. 2020). Plaintiffs, owners of a condominium unit, originally filed suit against both Curry-Dixon and Brother’s Painting for negligence after a fire occurred during the course of renovations at the condominium complex. In Curry-Dixon’s contract, it agreed that it would “maintain a clean site and dispose of debris in a dumpster or trailer on site.”




construction
CONTRACTOR’S BAD FAITH CLAIM PREMISED ON SUBCONTRACTOR PERFORMANCE BOND DOES NOT EXIST UNDER ALABAMA LAW

In Goudy Construction, Inc. v. Raks Fire Sprinkler LLC, Plaintiff Goudy Construction, Inc. (“Goudy”) served as the general contractor for a project for which Defendant Raks Fire Sprinkler LLC (“Raks”) submitted a bid to install a fire sprinkler system. 2019 WL 6841067 (N.D. Ala. 2019). Goudy accepted Raks’ bid and entered into a contractual agreement that required Raks to provide commercial liability insurance for the duration of the Project and was also required to provide a performance bond with Goudy as the owner. Raks complied with these requirements, purchasing the performance bond from Defendant Aegest Security Insurance Company (“Aegest”).





construction
COURT HOLDS THAT SUBCONTRACTOR CANNOT RECOVER FOR UNJUST ENRICHMENT FROM CLIENT OWNERS

The Middle District of Florida held that a client-owner was not unjustly enriched despite a subcontractor’s belief that the client-owner was undercharged by the general contractor. In Commercial Repairs and Sales, LLC v. Signet Jewelers Limited, Plaintiff Commercial Repairs and Sales, LLC (“CRS”) provided construction improvement and facility management. Defendant Signet Jewelers Limited (“Signet”) is a jewelry conglomerate with retail locations around the world.





construction
TENNESSEE COURT OF APPEALS MODIFIES TRIAL COURT RULING ON FEES OWED UPON DELAY ISSUE

In E Solutions for Buildings, LLC v. Knestrick Contractor, Inc., et al., appellant E Solutions for Buildings, LLC (“E Solutions”) challenged the trial court’s award as it related to a subcontractor’s payments owed to E Solutions. 2019 WL 5607473 (Tenn. Ct. App. 2019). The case stemmed from the construction of the Centennial Sportsplex Indoor Fitness Expansion Building (the “Sportsplex”) by the Metropolitan Government of Nashville and Davidson County (“Metro”). Metro entered into a contract with Knestrick Contractor, Inc. (“Knestrick”) for the construction of the Sportsplex (the “Contract”). Under the Contract, Knestrick was obligated to accomplish substantial completion of the project by December 2, 2013.





construction
GEORGIA APPELLATE COURT REINFORCES CONTRACTUAL WAIVER OF PAYMENT CLAUSE

In ALA Construction Services, LLC v. Controlled Access, Inc., ALA Construction Services, LLC (“ALA Construction”) hired subcontractor Controlled Access, LLC (“Controlled Access”) to provide equipment and related services for the construction of townhomes. 2019 WL 4463305 (Ga. App. Ct. 2019). Pursuant to their written contract, Controlled Access signed two documents entitled “Interim Waiver and Release Upon Payment”, which required it to file an affidavit of nonpayment or a claim of lien within a 60 day period or else the amount due to it by ALA Construction would be considered paid in full. ALA Construction failed to pay the agreed upon amount, but Controlled Access did not file an affidavit within the required time period.





construction
UNITED STATES DISTRICT COURT FINDS THAT CONSTRUCTION DEFECT EXPERTS MAY NOT OFFER LEGAL CONCLUSIONS

In Jeanes v. McBride, Plaintiff Janet Jeanes (“Ms. Jeanes”) brought a suit against Defendant Greg McBride (“Mr. McBride”) regarding Mr. McBride’s construction of a building on a plot of land owned by Ms. Jeanes. 2019 WL 2583113 (W.D. La. 2019). Ms. Jeanes told Mr. McBride that she wanted a building for spaces for her horses and living quarters for herself (“the Building”).





construction
MIDDLE DISTRICT OF FLORIDA RULES IN FAVOR OF UNPAID SUB SUBCONTRACTOR
Taylor Industrial Construction v. Westfield Insurance Company involved a general contractor, subcontractor, sub-subcontractors, and a surety disputed over payment after termination of the contract. 2019 WL 3068395 (M.D. Fla. 2019). In May 2016, general contractor Slone Associates, Inc. (“Slone”) was hired to provide construction-related services and materials for the ceiling area of a WalMart Distribution Center (“the Project”). Slone entered into a subcontract with Daniels Welding Services, Inc. (“Daniels”) to perform certain roof joist reinforcement work. Taylor Industrial Construction, Inc. (“Taylor”) was hired by Daniels as a sub-subcontractor to perform welding work, which Taylor began on June 25, 2016.




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 constructed the complex, alleging negligent construction and breach of contract/implied warranty.




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 bring a claim under the FDUTPA.




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 barred it from relying upon what otherwise would have been an enforceable provision of the subcontract and, thus, the general contractor was required to pay the subcontractor in full. 




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 repair work did not occur.




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 completion occurs, not when the Notice of Substantial Completion is filed.




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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