Circumstances In Which Design Professional Has Construction Lien Rights
February 24, 2020 —
David Adelstein - Florida Construction Legal UpdatesIf you are a design professional (architect, landscape architect, interior designer, engineer, surveyor, or mapper) you have construction lien rights in the event you are not paid. This does not mean your lien rights are absolute so it is important to understand the circumstances which allow you to record a construction lien on a project. These circumstances are contained in Florida Statute s. 713.03:
(1) Any person who performs services as architect, landscape architect, interior designer, engineer, or surveyor and mapper, subject to compliance with and the limitations imposed by this part, has a lien on the real property improved for any money that is owing to him or her for his or her services used in connection with improving the real property or for his or her services in supervising any portion of the work of improving the real property, rendered in accordance with his or her contract and with the direct contract.
(2) Any architect, landscape architect, interior designer, engineer, or surveyor and mapper who has a direct contract and who in the practice of his or her profession shall perform services, by himself or herself or others, in connection with a specific parcel of real property and subject to said compliances and limitations, shall have a lien upon such real property for the money owing to him or her for his or her professional services, regardless of whether such real property is actually improved.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Free Texas MCLE Seminar at BHA Houston June 13th
May 29, 2014 —
Beverley BevenFlorez-CDJ STAFFThere are just two weeks remaining to sign up for Bert L. Howe & Associate’s next Texas MCLE seminar, THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION.
This activity will be presented on Friday, June 13th at noon, at BHA’s Houston offices, located at:
800 Town & Country Blvd.
Suite 300
Houston, TX 77024
There is no cost for attendance at this seminar and lunch will be provided.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit. The seminar will be presented by Don MacGregor, general contractor and project manager.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation. The graphic and animation-supported workshop/lecture activity will focus on the residential construction process from site preparation through occupancy, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals. Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
*Typical construction materials, and terminology associated with residential construction
*The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
*The parties (subcontractors) typically associated with major construction assemblies and components
*An analysis of exposure/allocation to responsible parties.
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
*A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
*A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
*The ability to identify, both quickly and accurately, potentially responsible parties
*An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
Course #: 901290467 / Sponsor #: 14152. To register for the event, please email Don MacGregor at dmac@berthowe.com. If you have any questions, please feel free to contact Don at (800) 482-1822 (office) or (714) 713-4956 (cell).
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Number of Occurrences Is On the Agenda at This Year's ICLC Seminar
February 05, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThis year's Insurance Coverage Litigation Committee's CLE Seminar will be conducted in Tucson, Arizona, from March 4-7, 2015. Each year, the conference offers informative, cutting-edge sessions on a variety of insurance-related topics. Participants from across the country with varying perspectives on insurance coverage, including lawyers, judges, risk managers, and insurance professionals, will be attendance. The seminar's brochure is attached
here.
"Number of Occurrences" will be the topic my panel presents on March 7. We will be honored to have on our panel Alaska Supreme Court Justice Peter Maassen, my old skiing and running buddy from my Alaska days. Justice Maassen's opinion in United Servs. Auto. Ass'n. v. Neary, 307 P.3d 907 (Alaska 2013) was the genesis for our topic.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Evaluating Construction Trends From 2023 and Forecasting For 2024
February 12, 2024 —
Jason Feld & Dominic Donato - Kahana FeldAs we begin 2024, it is informative to evaluate what transpired in 2023 in the construction industry, and especially the use of construction technology. 2023 ushered in a variety of newly implemented construction technologies including 3D printed entire houses, improved wearables that detect all aspects of the construction worker from location to temperature to heart rate, increased use of modular construction for entire apartments, hotels, and condominium projects, and eco-friendly and conservation minded technologies to minimize carbon footprint, water preservation and sustainable construction methods, to name a few.
2023 also identified some significant issues in the construction industry. First and foremost, the labor shortages and hiring of skilled and qualified workers continued to be an issue resulting in increased delays, construction accidents, and project mismanagement. The skyrocketing interest rates, decline in commercial/office projects, supply chain issues, material price fluctuation and increase changes in scope of projects all negatively impacted the construction industry in 2023. There is also the demand for renewable and infrastructure projects put strain on construction resources as the projects became “mega” with larger and more complex construction leading to multi-party, high dollar, and more complex claims. Finally, there is a growing trend of construction claims and litigation being financed by third party litigation funding sources for personal/bodily injury claims and construction defect claims.
Reprinted courtesy of
Jason Feld, Kahana Feld and
Dominic Donato, Kahana Feld
Mr. Feld may be contacted at jfeld@kahanafeld.com
Mr. Donato may be contacted at ddonato@kahanafeld.com
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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again that the Right to Repair Act is the Exclusive Remedy for Construction Defect Claims
June 05, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. - Chapman Glucksman Dean Roeb & Barger BulletinBackground
In Gillotti v. Stewart (April 26, 2017) 2017 WL 1488711, which was ordered to be published on May 18, 2017, the defendant grading subcontractor added soil over tree roots to level the driveway on the plaintiff homeowner’s sloped lot. The homeowner sued the grading subcontractor under the California Right to Repair Act (Civil Code §§ 895, et seq.) claiming that the subcontractor’s work damaged the trees.
After the jury found the subcontractor was not negligent, the trial court entered judgment in favor of the subcontractor. The homeowner appealed, arguing that the trial court improperly construed the Right to Repair Act as barring a common law negligence theory against the subcontractor and erred in failing to follow Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Third District Court of Appeal disagreed and affirmed the trial court’s judgment in favor of the subcontractor.
Impact
This is the second time the Third District Court of Appeal has held that Liberty Mutual (discussed below) was wrongly decided and held that the Right to Repair Act is the exclusive remedy for construction defect claims. The decision follows its holding in Elliott Homes, Inc. v. Superior Court (Hicks) (2016) 6 Cal.App.5th 333, in which the Court of Appeal held that the Right to Repair Act’s pre-litigation procedures apply when homeowners plead construction defect claims based on common law causes of action, as opposed to violations of the building standards set forth in the Right to Repair Act. Elliott is currently on hold at the California Supreme Court, pending the decision in McMillin Albany, LLC v. Superior Court (2015) 239 Cal.App.4th 1132, wherein Liberty Mutual was rejected for the first time by the Fifth District. CGDRB continues to follow developments regarding the much anticipated McMillin decision closely, as well as all related matters.
Discussion
The Right to Repair Act makes contractors and subcontractors not involved in home sales liable for construction defects only if the homeowner proves they negligently cause the violation in whole or part (Civil Code §§ 911(b), 936). As such, the trial court in Gillotti instructed the jury on negligence with respect to the grading subcontractor. The jury found that while the construction did violate some of the Right to Repair’s building standards alleged by the homeowner, the subcontractor was not negligent in anyway. After the jury verdict, the trial court found in favor of the grading subcontractor.
The homeowner moved for a judgment notwithstanding the verdict or a new trial on the grounds that the trial court improperly barred a common law negligence theory against the grading subcontractor. The trial court denied the motions on the grounds that “[t]he Right to Repair Act specifically provides that no other causes of action are allowed. See Civil Code § 943.” The trial court specifically noted that its decision conflicted with Liberty Mutual, in which the Fourth District Court of Appeal held that the Right to Repair Act does not eliminate common law rights and remedies where actual damage has occurred, stating that Liberty Mutual was wrongly decided and that the Liberty Mutual court was naïve in its assumptions regarding the legislative history of the Right to Repair Act.
In Gillotti, the Third District Court of Appeal stated that the Liberty Mutual court failed to analyze the language of Civil Code § 896, which “clearly and unequivocally expresses the legislative intent that the Act apply to all action seeking recovery of damages arising out of, or related to deficiencies in, residential construction, except as specifically set forth in the Act. The Act does not specifically except actions arising from actual damages. To the contrary, it authorizes recovery of damages, e.g., for ‘the reasonable cost of repairing and rectifying any damages resulting from the failure of the home to meet the standards....’ ([Civil Code] § 944).”
The Court also disagreed with Liberty Mutual’s view that because Civil Code §§ 931 and 943 acknowledge exceptions to the Right to Repair Act’s statutory remedies, the Act does not preclude common law claims for damages due to defects identified in the Act. The Court stated: “Neither list of exceptions, in section 943 or in section 931, includes common law causes of action such as negligence. If the Legislature had intended to make such a wide-ranging exception to the restrictive language of the first sentence of section 943, we would have expected it to do so expressly.”
Additionally, the Court of Appeal rejected the argument that Civil Code § 897 preserves a common law negligence claims for violation of standards not listed in Civil Code § 986. It explained that the section of Civil Code § 897, which provides, “The standards set forth in this chapter are intended to address every function or component of a structure,” expresses the legislative intent that the Right to Repair Act be all-encompassing. Anything inadvertently omitted is actionable under the Act if it causes damage. Any exceptions to the Act are made expressly through Civil Code §§ 931 and 934. The Court concluded in no uncertain terms that the Right to Repair Act precludes common law claims in cases for damages covered by the Act.
The homeowner further argued that she was not precluded from bringing a common law claim because a tree is not a “structure,” and therefore the alleged tree damage did not fall within the realm of the Right to Repair. The Court of Appeal also rejected this argument, holding that while the tree damage itself was not expressly covered, the act of adding soil to make the driveway level (which caused the damage) implicated the standards covered by the Right to Repair Act. The Court explained that since under the Act a “structure” includes “improvement located upon a lot or within a common area” (Civil Code § 895(a)), as the driveway was an improvement upon the lot, the claim was within the purview of the Right to Repair Act. As the soil, a component of the driveway, caused damage (to the trees), it was actionable under the Act.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Understanding the Real Estate and Tax Implications of Florida's Buyer Ban Law
July 16, 2023 —
Kelly Erb - White and Williams LLPLast month, Gov. Ron DeSantis (R) of Florida signed a new law that would prohibit people who are not U.S. citizens or permanent residents and whose "domicile" is in China from purchasing certain real property in the state. Generally, the prohibition applies to agricultural land and other land within ten miles of restricted areas, including military bases and infrastructure like airports and wastewater treatment plants.
The law, which takes effect on July 1, 2023, would also impose criminal penalties on any person or real estate company that knowingly sells real estate in the Sunshine State to anyone impacted by the ban.
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Kelly Erb, White and Williams LLPMs. Erb may be contacted at
erbk@whiteandwilliams.com
Professional Liability and Attorney-Client Privilege Bulletin: Intra-Law Firm Communications
January 07, 2015 —
David W. Evans & Stephen J. Squillario – Haight Brown & Bonesteel LLPAttorney-Client Privilege Protects Confidential Communications Between Law Firm Attorney Representing Current Client and Firm’s General Counsel Regarding Disputes with Client Who Later Files Malpractice Suit
In a case of first impression in California, Edwards Wildman Palmer LLP v. Superior Court (No. B255182 - filed November 25, 2014), Division Three of the Second District Court of Appeal addressed the question of whether the attorney-client privilege applies to intrafirm communications between law firm attorneys concerning disputes with a current client, when that client later sues the firm for malpractice and seeks to compel production of such communications. The court concluded that when an attorney representing a current client seeks legal advice from the law firm’s designated in-house “general counsel” concerning disputes with the client, the attorney-client privilege applies to their confidential communications. The court held that adoption of the so-called “fiduciary” or “current client” exceptions to the attorney-client privilege is contrary to California law because California courts are precluded from creating implied exceptions to the statutorily created attorney-client privilege.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Stephen J. Squillario, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com; Mr. Squillario may be contacted at ssquillario@hbblaw.com
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Claim Preclusion: The Doctrine Everyone Thinks They Know But No One Really Knows What it Means in Practice
April 25, 2023 —
Garret Murai - California Construction Law BlogGenerally, I think restraint in litigation is a good thing. Don’t go crazy on your claims, don’t go nut-so in your discovery, and don’t present your case at trial in a way that causes the judge and/or jury to raise their eyebrows or shake their heads in disbelief. But, as with nearly everything, there’s always an exception. One of which is: don’t hold back on a claim because you “think” you might be able to bring it later, because you might not be able to as the next case, 5th and LA v. Western Waterproofing Company, Inc., 87 Cal.App.5th 781 (2023), demonstrates.
The 5th and LA Case
At the outset, let me first say how much I enjoyed reading this case based on the writing alone. The case, as the 2nd District Court of Appeals states, involves “a second lawsuit about an increasingly leaky roof.”
In 2012, property owner 5th and LA hired roofing contractor Western Waterproofing Company, Inc. to remove and recoat a parking lot that served also served as the roof over retail and office space below. Western completed its work in July 2012 and almost immediately 5th and LA noticed water that the coating was failing causing water leaks to the interior of the building.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
