Who is a “Contractor” as Used in “Unlicensed Contractor”?
June 08, 2020 —
Taylor Orgeron - Autry, Hall & Cook, LLPA recent Georgia Court of Appeals case established a rule concerning the effect of an unlicensed contractor failing to disclose that he is unlicensed. In Fleetwood v. Lucas,[1] the contractor was hired by the homeowners to perform renovations on two homes. One of the projects went over budget, and the homeowners failed to pay the remaining balances on both projects. Following their failure to pay, the contractor sued the homeowners for breach of contract, and the jury delivered a verdict in his favor. The homeowners appealed on the grounds that the contractor was barred from bringing suit because the contractor did not have a license to perform the work.
Generally, if a contractor does not have a residential or general contractor’s license but performs work when a license is required, the contract is unenforceable. O.C.G.A. § 43-41-17(b). However, under O.C.G.A. § 43-41-17(g), a contractor may perform repair work without a license if the contractor discloses that he does not have a license, and the work does not affect the structural integrity of the project. In this case, the contractor failed to disclose that he did not have a license.
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Taylor Orgeron, Autry, Hall & Cook, LLPMr. Orgeron may be contacted at
orgeron@ahclaw.com
A Survey of New Texas Environmental and Regulatory Laws Enacted in the 88th Session (Updated)
August 28, 2023 —
Anthony B. Cavender & Alexandra Trahan - Gravel2Gavel Construction & Real Estate Law BlogThis is a brief survey of many of the environmental and regulatory laws passed by the Texas Legislature and signed by the Governor in the 88th Regular Session of the Legislature, which ended in May 2023, although a special session has been called to address lingering matters. Altogether, more than 1,000 laws were enacted in this session, including a surprising number of water-related environmental bills.
Water
HB1565 relates to the functions of the Texas Water Development Board and continuation and functions of the State Water Implementation Fund for Texas Advisory Committee.
Effective 9.1.23.
HB1699 relates to the authority of the Evergreen Underground Water Conservation District to impose certain fees.
Effective 6.9.23.
HB1845 amends Section 37 of the Water Code to add Section 37.0045 relating to the licensing requirements for certain operators of wastewater systems and public water systems.
Effective 9.1.23.
Reprinted courtesy of
Anthony B. Cavender, Pillsbury and
Alexandra Trahan, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com
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Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!
May 10, 2017 —
Ben Reeves - Snell & Wilmer Real Estate Litigation BlogWhat law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. App. April 15, 2017). It turns out, the note controls.
The Facts
In ZB, ZB, N.A. (ZB), a Utah bank, lent money to the Hoellers to purchase a commercial property in Missouri. The note included a choice-of-law provision stating that Utah law governed the debt. The deed of trust securing the commercial property, however, provided that Missouri law controlled “procedural matters related to the perfection and enforcement of [ZB’s] rights and remedies against the [p]roperty.” In 2012, the Hoellers defaulted, and the bank recovered the property through a trustee’s sale.
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Ben Reeves, Snell & WilmerMr. Reeves may be contacted at
breeves@swlaw.com
COVID-19 Response: Recent Executive Orders Present Opportunities for Businesses Seeking Regulatory and Enforcement Relief and Expedited Project Development
June 15, 2020 —
Karen C. Bennett, Jane C. Luxton & Amanda L. Tharpe - Lewis BrisboisWashington, D.C. (June 8, 2020) - Two recent Executive Orders (EO) aimed at promoting economic recovery from the COVID-19 crisis offer regulatory and enforcement relief and encourage agencies to expedite infrastructure project approvals. The May 19, 2020 EO 13924, “Regulatory Relief to Support Economic Recovery,” directs agencies to determine whether previous regulatory reforms would promote economic recovery if made permanent and encourages compliance assistance through exercising enforcement discretion, including declining enforcement. And the June 4, 2020 EO 13927, “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” aims to speed up the permitting process for infrastructure projects to strengthen the national economy. As businesses look to move forward and recover from the COVID-19 pandemic, they should closely review these EOs for opportunities to take advantage of streamlined treatment and faster project approvals.
EO 13294 supplements the Administration’s efforts to address the economic crisis brought on by the COVID-19 pandemic by encouraging federal agencies to rescind, modify, waive, or provide exemptions from federal regulations that may inhibit economic recovery and to provide guidance to businesses, particularly small businesses, on what is required of them under federal law for reopening. Specifically, the EO directs agency heads to identify regulatory standards that may inhibit economic recovery and consider rescinding or waiving those regulations, exempting regulated entities from compliance, exercising enforcement discretion, or extending regulatory compliance and enforcement deadlines. It also allows for compliance assistance through accelerated regulatory procedures to receive a pre-enforcement ruling and directs agencies to assess previous regulatory reforms to determine whether making them permanent would promote economic recovery. Since taking office, the Trump Administration has made regulatory reform a cornerstone of its agenda. This Executive Order is a continuation of the aggressive steps taken by the Administration to reduce the regulatory burden faced by American businesses that many argue increases operating costs, inhibits job creation, and stifles economic growth.
Reprinted courtesy of Lewis Brisbois attorneys
Karen C. Bennett,
Jane C. Luxton and
Amanda L. Tharpe
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com
Ms. Tharpe may be contacted at Amanda.Tharpe@lewisbrisbois.com
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New York Considers Amendments to Construction Industry Wage Laws that Would Impose Significant Burden Upon Contractors
August 04, 2021 —
Richard W. Brown & Michael D. Angotti - Saxe Doernberger & Vita, P.C.A bill that would amend the the wage and hour requirements of the New York Labor Law was recently passed by the New York State Legislature and is expected to be signed by Governor Cuomo. Bill Number S2766C (the “Bill”) is intended to protect construction workers against wage theft. However, it places a heavy burden on contractors to police the payroll practices of its downstream subcontractors and exposes them to potentially significant liability for the wage and hour violations of their subcontractors.
The proposed Bill would make a contractor or upstream subcontractor jointly and severally liable for any wages owed to employees of their subcontractors. The Bill allows for a private right of action for such subcontractor’s employee (or such employee’s representative) to bring a civil or administrative action seeking payment of unpaid wages owed pursuant to Section 198 of the New York Labor Law. In such an action against a subcontractor for unpaid wages, the contractor or upstream subcontractor is not only jointly and severally liable for any unpaid wages, but also for the prevailing claimant’s reasonable attorney fees, prejudgment interest, and, absent a good faith defense, liquidated damages equal to the amount of the wages owed.
Reprinted courtesy of
Richard W. Brown, Saxe Doernberger & Vita, P.C. and
Michael D. Angotti, Saxe Doernberger & Vita, P.C.
Mr. Brown may be contacted at RBrown@sdvlaw.com
Mr. Angotti may be contacted at MAngotti@sdvlaw.com
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Mediating Contract Claims and Disputes at the ASBCA
December 20, 2021 —
Brian Waagner - Construction ExecutiveThe Contract Disputes Act establishes the formal process for resolving nearly all claims and disputes that arise under federal government contracts. It is the source of the requirement that contractors certify claims in excess of $100,000, the contracting officer’s final decision and the deadlines for bringing a dispute to the court of federal claims or an agency board of contract appeals.
It is also the source of the federal government’s authority to use mediation and other forms of alternative dispute resolution. Here are six key factors contractors should know about mediating contract claims and disputes at the Armed Services Board of Contract Appeals (ASBCA).
1. The Parties Control the Parameters of ADR Proceedings
Many commercial contracts and court rules require mediation of every dispute. There is no settlement meeting, mediation or any other type of mandatory ADR proceedings in cases brought to the ASBCA. The parties control the process, and they may adopt any approach to ADR that they believe will be effective. Mediation is nevertheless voluntary. Without the agreement of both parties, it won’t happen.
Reprinted courtesy of
Brian Waagner, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Late Progress Payments on Local Public Works Projects Are Not a Statutory Breach of Contract
May 10, 2022 —
Ted Senet & Christopher Trembley - Gibbs GidenCalifornia local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount.
In 2013, the North Edwards Water District awarded a $6.2 million contract to Clark Bros., Inc. to construct a water treatment facility. The District’s water contained excessive levels of arsenic, and the project was sponsored by the State of California with funds earmarked to provide safe drinking water. The State agreed to disburse funds to the District during construction upon the State’s review and approval of the contractor’s progress payment applications. The contract required completion of the work within one year following the District’s issuance of a notice to proceed to the contractor.
As a result of factors arguably outside the control of the contractor, including unforeseen site conditions and the failure of the District’s equipment supplier to meet delivery deadlines, the project was significantly delayed beyond the deadline for completion. The District nonetheless terminated the contractor, which in turn filed suit against the District and the State. The contractor asserted claims for breach of contract, including breach of contract for the District’s failure to pay the contractor’s progress payment applications within the time specified under Public Contract Code § 20104.50. Subsection (b) of the statute provides:
Any local agency which fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract shall pay interest to the contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.
Reprinted courtesy of
Ted Senet, Gibbs Giden and
Christopher Trembley, Gibbs Giden
Mr. Senet may be contacted at tsenet@gibbsgiden.com
Mr. Trembley may be contacted at Ctrembley@gibbsgiden.com
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The Activist Group Suing the Suburbs for Bigger Buildings
December 10, 2015 —
Patrick Clark – BloombergIn a speech last month, Council of Economic Advisers Chairman Jason Furman blamed zoning restrictions—local land-use rules governing things like how tall buildings can grow—for the lack of affordable housing, lost economic productivity, and rising inequality across the U.S.
On Tuesday, a San Francisco activist named Sonja Trauss took Furman's argument to the streets, filing a lawsuit in Contra Costa County (Calif.) to fight what she sees as a lost opportunity to build more housing.
Trauss's organization, the San Francisco Bay Area Renters Federation (yes, SFBARF), is suing the City of Lafayette, a Bay Area suburb of about 25,000, to block plans to build 44 single-family homes on a plot of land once slated for a 315-unit apartment complex. Her argument relies on a three-decade-old California law intended to check local governments’ ability to reduce the density of certain construction projects. Called the Housing Accountability Act, the law has been used successfully by developers of affordable housing who have had their projects blocked, Trauss said, but never by an advocacy group advocating for greater density as a public good.
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Patrick Clark, Bloomberg
