Don’t Ignore the Dispute Resolution Provisions in Your Construction Contract
June 05, 2023 —
David Adelstein - Florida Construction Legal UpdatesDon’t ignore dispute resolution provisions in a construction contract. Sometimes, you may want to. But dispute resolution provisions should be one of the first provisions you look to when a dispute arises recognizing these provisions will be raised if you fail to comply. Not only will they be raised, but the presumption is they will be enforced. This is the situation that was raised in Seminole County, Florida v. APM Construction Corp., 2023 WL 3555356 (Fla. 5th DCA 2023).
Here, a contractor was terminated for cause by Seminole County. The contractor then filed suit against the County. The County moved to dismiss the lawsuit because the contractor failed to comply with contractual presuit administrative procedures in the contract prior to filing a lawsuit. While the trial court denied the County’s motion to dismiss, the appellate court granted the County’s petition for writ of certiorari quashing the trial court’s order denying the motion to dismiss. For purposes of granting the writ of certiorari, the appellate court held irreparable harm existed because “certiorari jurisdiction is properly exercised when a trial court permits a party to litigate when there is a contractual or legal obligation to first administrative proceed.” Seminole County, supra, at *2.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Foreclosure Deficiency: Construction Loan vs. Home Improvement Loan
November 12, 2019 —
Kevin J. Parker - Snell & Wilmer Real Estate Litigation BlogIn a recent Arizona Court of Appeals case, Helvetica Servicing, Inc., v. Pasquan, 2019 WL 3820015, (8/15/19), the Court of Appeals addressed the distinction between (1) a construction loan (or refinance of same) and (2) a home improvement loan (or refinance of same), as it relates to Arizona’s anti-deficiency statute, A.R.S. §33-729(A).
In general, an anti-deficiency statute provides that although a purchase-money lender or a construction lender can – in appropriate circumstances – foreclose on their loan and cause a sale of the property to pay the loan, the lender cannot (if the statutory criteria are met) force the homeowner/borrower to pay the remaining balance still owed on the loan following the foreclosure (known as the deficiency). In other words, if the anti-deficiency rule applies, the lender’s sole remedy to collect on the loan is a foreclosure sale of the property; and the homeowner/borrower’s downside risk is loss of the property in foreclosure; the homeowner/borrower does not have any personal liability to pay the remaining unpaid balance of the loan post-foreclosure. In effect, the homeowner/borrower can simply walk away and not have to repay the loan.
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Kevin J. Parker, Snell & WilmerMr. Parker may be contacted at
kparker@swlaw.com
5 Impressive Construction Projects in North Carolina
February 04, 2014 —
Melissa Dewey Brumback – Construction Law in North CarolinaWhat are your top construction building projects in North Carolina? Do you have a “short list”? Author Ralitsa Golemanova of JW Surety Bonds does, and she has the reasoning behind them. Ralista’s Top 5, which all “present a different facet of exceptional modern design and construction” are presented below. For her full commentary and some great pictures of the projects, check out her full article.
Her list, in no particular order, includes:
1. The North Carolina Museum of Art’s West Building Expansion
The 127,000 square-feet West Building Expansion of the North Carolina Museum of Arts won the 2011 American Institute of Architects (AIA) Honor Award for Architecture. The Building is largely made of aluminum panels. One of its specificities is that it does not have any windows. Instead, visibility is ensured through 360 skylights that allow delicate natural light to enter the inner galleries.
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Melissa Dewey Brumback, Construction Law in North CarolinaMs. Brumback can be contacted at
mbrumback@rl-law.com
PAGA Right of Action Not Applicable to Construction Workers Under Collective Bargaining Agreement
December 26, 2022 —
Garret Murai - California Construction Law BlogCalifornia is one of the most employee-friendly states in the country. From strict hiring laws (don’t think about asking about an applicant’s criminal, credit or even salary history), to generous benefits (minimum wage, overtime, meal and rest breaks, family medical leave, etc.) and strict anti-harassment laws (if you have to think about it, even for a second, don’t do it), to protections for terminated workers (whistle blower protections, WARN notices, non-compete restrictions), California workers enjoy protections that many others do not.
This includes PAGA, or the Private Attorneys General Act, which authorizes aggrieved employees to file lawsuits against their employers to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. In general, the right of an employee to file a PAGA action cannot be waived by contract. However, Labor Code section 2699.6 which was enacted in 2018 provides an exception for construction workers who perform work under certain collective bargaining agreements.
In the next case, Oswald v. Murray Plumbing and heating Corporation, 82 Cal.App.5th 938 (2022), the 2nd District Court of Appeal examined whether collective bargaining agreement with a retroactive date, signed after an employee was terminated, precluded an employee from bringing a PAGA action.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Gordon & Rees Ranked #4 of Top 50 Construction Law Firms in the Nation by Construction Executive Magazine
July 11, 2022 —
GRSM Construction Team - Gordon & Rees Construction Law BlogGordon Rees Scully Mansukhani has been ranked as the No. 4 construction law firm in the nation by Construction Executive in the magazine’s 2022 ranking of The Top 50 Construction Law Firms™. As the only law firm with offices and attorneys in all 50 states, Gordon & Rees’ construction group (with over 150 construction lawyers) delivers maximum value to our clients by understanding their business and combining the resources of a full-service national firm with the local knowledge of a regional firm.
Led by Allen Estes and Angela Richie, the construction lawyers at Gordon & Rees are uniquely situated to serve our construction clients. We have attorneys with professional training and practical experience in related fields such as engineering and construction management, as well as lawyers with leadership experience in various construction industry related trade associations, legal advisory committees and government agencies. “If a client is looking for a legal partner in multiple states who understands their business, Gordon & Rees is that partner,” said Angela Richie.
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GRSM Construction Team, Gordon Rees Scully Mansukhani
Haight Attorneys Selected to 2018 Southern California Rising Stars List
June 13, 2018 —
Haight Brown & Bonesteel LLPHaight proudly announces that Partner Michael C. Parme and attorneys Frances Ma and Kristian B. Moriarty have been selected to the 2018 Southern California Rising Stars list.
Super Lawyers, a Thomson Reuters business, is a rating service that lists outstanding lawyers from a wide range of practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
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Haight Brown & Bonesteel LLP
Women in Construction Aren’t Silent Anymore. They Are Using TikTok to Battle Discrimination
March 06, 2022 —
Workwear GuruHow does it feel to be a woman working in a male-dominated industry? It means an everyday fight on gender bias, discrimination, pay inequality, and a bunch of mansplaining.
Though the construction industry progressed– over
1.2 million women work in construction, up from 619,000 in 1985–women continue to be a minority. Among the women working in the industry, almost
9 out of 10 women have an office role, while only 2.5% are tradespeople. The situation looks grimmer for women in higher positions as only
16% hold executive roles, and only
2% are CEOs. The issue becomes troublesome considering that 45% of women indicated that the lack of women role models working in senior positions halted advancement in their careers.
Gender discrimination was always prevalent in the construction industry, though it shows higher in today’s statistics. In 2020,
the annual study of women in construction showed 72% of women in construction face discrimination, up from 66% in 2005. The increase doesn’t mean there is an increase in workplace discrimination; instead, it shows women are raising their voices for the issue.
Today, women are using social media to show the prejudice they confront every day, inspire each other to speak up, and showcase their competencies within the industry.
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Workwear Guru
White and Williams Obtains Reversal on Appeal of $2.5 Million Verdict Against Electric Utility Company
September 03, 2014 —
Edward Koch, Mark Paladino, Luke Repici, & Andrew Susko – White and Williams LLPPPL Electric Utilities successfully argued on appeal that the $2.5 million plaintiff’s molded verdict awarded to an injured painting subcontractor should be vacated because the alleged evidence was legally insufficient and therefore the utility was not liable.
In Nertavich v. PPL Electric Utilities, the plaintiff argued that although the utility was a landowner out of possession of the worksite, the utility was liable because it controlled the work of the subcontractor both by contract and by conduct. PPL argued on appeal before the Superior Court of Pennsylvania that the alleged evidence of the utility company’s control was insufficient as a matter of law to constitute control over the means and methods of the subcontractor’s work, and thus, PPL was not liable as a landowner out of possession.
Reprinted courtesy of White and Williams LLP attorneys
Edward Koch,
Mark Paladino,
Luke Repici and
Andrew Susko
Mr. Koch may be contacted at koche@whiteandwilliams.com;
Mr. Paladino may be contacted at paladinom@whiteandwilliams.com;
Mr. Repici may be contacted at repicil@whiteandwilliams.com;
and Mr. Susko may be contacted at suskoa@whiteandwilliams.com
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