FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Denial of Motion to Dissolve Lis Pendens Does Not Automatically Create Basis for Certiorari Relief

November 16, 2023 — David Adelstein - Florida Construction Legal Updates
A recent appellate decision out of Florida’s Sixth District Court of Appeal holds that a trial court’s denial of motion to dissolve a lis pendens does NOT automatically give a basis for a petition for a writ of certiorari. Generalized allegations of “irreparable harm” to support the basis for the petition for writ of certiorari are insufficient. Rather, the party moving for the petition MUST clearly demonstrate the irreparable harm; otherwise, the petition for writ of certiorari will fail. A lis pendens has legal significance. It is a recorded document that notifies the world that there is a pending lawsuit dealing with the real property at issue. This is important because who wants to buy a piece of property that is subject to litigation – that would be a risky transaction! In CPPB, LLC v. Taurus Apopka City Center, LLC, 48 Fla.L.Weekly D1837a (Fla. 6th DCA 2023), a dispute arose as to a real estate transaction. The owner sold a parcel to a buyer. The owner also owned three adjacent parcels. As part of the transaction, the buyer agreed to perform certain improvements to all of the parcels including those adjacent parcels owned by the owner. The owner deposited funds in escrow for purposes of its share of the improvements. A payment dispute arose regarding the improvements and the buyer sued the seller. The seller filed a counterclaim to rescind the transaction along with a recorded lis pendens on the parcel purchased by the buyer. The buyer moved to dissolve the lis pendens which the trial court denied. This prompted the appeal – a petition for a write of certiorari based on the trial court’s denial of the motion to dissolve the lis pendens. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Real Estate & Construction News Roundup (10/18/23) – Zillow’s New Pilot Program, Production Begins at Solar Panel Plant in Georgia, and More Diversity on Contracts for Buffalo Bills Stadium

November 27, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, Netflix announces plans to open brick-and-mortar locations, NYU develops a way to examine buildings using drones, robots and AI, distressed U.S. commercial real estate hits a 10-year high, and more!

• Zillow is piloting a new program in Arizona offering new home buyers thousands of dollars to help them with their down payments. (Oliver Staley, TIME)
• After an initial backlash regarding workforce diversity, a Gilbane-Turner joint venture has given 40% of contracts on the new Buffalo Bills’ stadium to minority-, women- or service-disabled veteran-owned companies. (Joe Bousquin, Construction Dive)
• To ensure easier compliance with New York City’s Local Law 97, researchers at NYU are developing a method using drones, robots and AI to examine building exteriors for leaks. (Nish Amarnath, Construction Dive)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Issuing Judgment After Confirmation of Appraisal Award Overturned

May 01, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The Florida Court of Appeal reversed and remanded the trial court's judgment in favor of the insured because after confirming the appraisal award, judgment was issued before the insurer could offer policy defenses. State Farm Florida Ins. Co. v. Hochreiter, 2023 Fla. App. LEXIS 743 (Fla. Ct. App. Feb. 3, 2023. After a dispute arose over the scope and amount of damage suffered by the insureds' roof, they sued State Farm. State Farm responded to the complaint by demanding an appraisal, a stay of litigation, and an extension of time to respond to the complaint. The trial court granted the demand and retained jurisdiction regarding post-appraisal matters once the appraisal was complete. The court further ordered State Farm to respond to the complaint within twenty days of the conclusion of the appraisal "if any issues remain." The order did not specify whether the issues that remained had to relate to the initial appraisal stage of the litigation or the subsequent stage during which the trial court had jurisdiction to adjudicate disputed issues related to coverage. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Montana Federal Court Holds that an Interior Department’s Federal Advisory Committee Was Improperly Reestablished

December 09, 2019 — Anthony B. Cavender - Gravel2Gavel
On August 13, 2019, in a case that may have an impact on the leasing of federal lands for energy development in the future, the U.S. District Court for the Missoula, Montana Division, issued a ruling in the case of Western Organization of Resource Councils v. Bernhardt, which involves the application of the Federal Advisory Committee Act (FACA) to the Department of the Interior’s Royalty Policy Committee. This advisory committee, initially established in 1995 to provide advice to the Secretary on issues related to the leasing of federal and Indian lands for energy and mineral resources production, is subject to the provisions of FACA, codified at 5 U.S.C. app. Sections 1-16. The plaintiffs challenged the operations of this advisory committee, which was reestablished for two years beginning in 2017, because it allegedly “acts in secret and works to advance the goals of only one interest: the extractive industries that profit from the development of public gas, oil, and coal.” More specifically, the plaintiffs alleged that this advisory committee violated FACA because: (a) it was not properly established as provided in the implementing GSA rules (which are located at 41 CFR Section 102-3); (b) did not provide public notice of its meetings and publicly disseminate its materials; (c) ensure that its membership was fairly balanced; and (d) failed to exercise independent judgment without inappropriate influences from special interests. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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When it Comes to COVID Emergency Regulations, Have a Plan

December 07, 2020 — Christopher G. Hill - Construction Law Musings
As I hope readers of this construction corner of the “blogosphere” know, Virginia adopted emergency COVID workplace regulations effective July 27, 2020, and with enforcement beginning at the end of September. Among the various items found in these regulations are general requirements for all employers, including among others, the requirement to self determine the employer’s risk level and disinfecting requirements. The regulations also have some requirements that seem specially directed toward construction industry employers. These include among them engineering controls and various requirements relating to communications with subcontractors. For a good overview of these requirements, see this great post at the Virginia Bar Association’s construction law blog. One item that is not included in the emergency regulations is a statement that following the regulations immunizes an employer from COVID infection-related lawsuits. For this reason, among others, all construction (and other industry) employers should have a COVID plan that meets the requirements of these regulations at whatever “hazard level” that employer meets. These plans should be written and distributed to all employees and include protocols for workplace/job site screening and what to do if there is a need for contact tracing. I also highly recommend that any plan be created with the help of a good Virginia workplace safety consultant well versed in the COVID regulations. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Mortgage Applications in U.S. Jump 11.6% as Refinancing Surges

October 22, 2014 — Danielle Trubow – Bloomberg
Mortgage applications in the U.S. soared last week as a plunge in borrowing costs led to biggest gain in home refinancing since January 2012. The Mortgage Bankers Association’s index rose 11.6 percent in the period ended Oct. 17, the biggest gain since January, after a 5.6 percent advance the week before, figures from the Washington-based group showed today. The refinancing gauge jumped 23.3 percent while the purchase applications measure dropped 4.6 percent. Read the court decision
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Reprinted courtesy of Danielle Trubow, Bloomberg
Ms. Trubow may be contacted at dtrubow@bloomberg.net

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Cybersecurity “Flash” Warning for Construction and Manufacturing Businesses

April 05, 2021 — Jeffrey M. Dennis - Newmeyer Dillion
On March 23, 2021, the FBI’s Cyber Division issued a “Flash” warning for several business sectors, including industrial, commercial, manufacturing and construction businesses. The FBI is warning that a strain of ransomware, known as “Mamba,” has been used to weaponize a widely-used encryption software known as DiskCryptor. Mamba works through the open-source DiskCryptor program to encrypt a company’s operating system and demand ransom payment. This new ransomware attack is a threat to any business which employs DiskCryptor, specifically manufacturing and construction companies. What Should I Do? If your company utilizes DiskCryptor, the FBI suggests a number of recommendations to mitigate and ward off any ransomware attack. Most of these suggestions fall within the guidelines of proper cyber hygiene, and include (but are not limited to) the following:

• Regularly back up data, as well as copies of data;
• Segment your network;
• Request administrator credentials to install software;

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Reprinted courtesy of Jeffrey M. Dennis, Newmeyer Dillion
Mr. Dennis may be contacted at jeff.dennis@ndlf.com

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Miller Act Bond Claims Subject to “Pay If Paid”. . . Sometimes

November 04, 2019 — Christopher G. Hill - Construction Law Musings
The Federal Miller Act is a great tool that subcontractors and suppliers on Federal projects can use for collection of wrongfully withheld amounts due. However, as a recent federal case from the Eastern District of Virginia points out, the construction contract’s terms affect when a subcontractor or supplier can use this great collection tool and how much it can recover. In Aarow v Travelers the Court looked at the interaction between a typical termination clause, a “pay when paid” clause, and the Miller Act. The key facts are these. The general contractor on the project at issue, Syska, did not get paid some disputed amounts by the owner and subsequently did not pay Aarow, the plaintiff and a subcontractor on the project. Aarow then refused to continue work and was terminated by Syska who then took over the completion of the work. Aarow sued, seeking damages for the value of its work prior to the termination. Travellers, the surety defended stating that, if Aarow was properly terminated for cause by Syska, then Aarow was not entitled to payment under the contract until such time as the work was completed and accepted by the owner. The termination clauses are set out in the linked opinion. The Court agreed with Travelers, stating that the pay when paid clause created a situation whereby Aarow could not stop work merely because of a non-payment by Syska attributed to non-payment by the owner. The Court was clear in stating that the Miller Act trumps “pay when paid” in instances where the only cause for non-payment is non-payment by an owner. The Court then reasoned that it is the interaction between the termination and “pay when paid” provisions, and not the “pay when paid” clause itself, that exonerated Travelers because it created the default by Aarow due to its refusal to continue work. In short, Aarow was properly terminated for cause because it left the job without justification and therefore Travelers was not liable. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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