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Venue for Miller Act Payment Bond When Project is Outside of Us

December 02, 2019 — David Adelstein - Florida Construction Legal Updates
The proper venue for a Miller Act payment bond claim is “in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.” 40 U.S.C. s. 3133(b)(3)(B). Well, there are a number of federal construction projects that take place outside of the United States. For these projects, where is the correct venue to sue a Miller Act payment bond if there is no US District Court where the project is located? A recent opinion out of the Southern District of Florida answers this question. In U.S. ex. rel. Salt Energy, LLC v. Lexon Ins. Co., 2019 WL 3842290 (S.D.Fla. 2019), a prime contractor was hired by the government to design and construct a solar power system for the US Embassy’s parking garage in Burkina Faso. The prime contractor hired a subcontractor to perform a portion of its scope of work. The subcontractor remained unpaid in excess of $500,000 and instituted a Miller Act payment bond claim against the payment bond surety in the Southern District of Florida, Miami division. The surety moved to transfer venue to the Eastern District of Virginia arguing that the Southern District of Florida was an improper venue. The court agreed and transferred venue. Why? 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

Balestreri Potocki & Holmes Attorneys Named 2020 Super Lawyers and Rising Star

July 06, 2020 — Balestreri Potocki & Holmes
The law firm of Balestreri Potocki & Holmes is pleased to announce that Shareholders Thomas A. Balestreri, Jr. and Joseph P. Potocki have been selected as 2020 Super Lawyers and Associate Robin H. Smith has been named a 2020 Rising Star. Each year no more than 5 percent of the lawyers in the state are selected to receive the honor of being included in the Super Lawyers list and no more than 2.5 percent of the lawyers are selected to the Rising Stars list. Balestreri has been selected to the Super Lawyers list in the areas of Construction Litigation. Balestreri has dedicated most of his 30 plus years in practice to the representation of developers, property owners, and general contractors in litigation, negotiations, and risk management. A seasoned trial lawyer, he has tried a number of high exposure cases with great success. Selected as a Super Lawyer in the area of Construction Litigation, Potocki’s practice concentrates on litigation, transactional matters and construction contract drafting and negotiation. His extensive litigation experience involves high-value disputes relating to a wide variety of issues in the real estate, business and construction arenas. Smith has been named a Rising Star by Super Lawyers in the area of Civil Litigation. In her varied litigation practice, Smith represents individuals and business entities in complex catastrophic personal injury matters. She also represents employers in labor and employment matters and a variety of businesses, including automobile dealers, in breach of contract, unfair competition, unfair business practices, defamation, and consumer claims. Super Lawyers, a Thompson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. Balestreri Potocki & Holmes is headquartered in San Diego, California. The firm provides comprehensive counsel to large and small companies across a wide range of established and emerging industries. Balestreri Potocki & Holmes is located in downtown San Diego at 401 B Street, Suite 1470. More information about the firm can be found at: www.bph-law.com. Read the court decision
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Reprinted courtesy of Balestreri Potocki & Holmes

Apartment Investors Turn to Suburbs After Crowding Cities

March 12, 2015 — Nadja Brandt and Oshrat Carmiel – Bloomberg
(Bloomberg) -- Real estate investor Robert Hart pulled into the lot of a 400-unit apartment community in a San Diego suburb last month, prepared to pay up for the recently completed project on a quiet residential street. A competitor from a publicly traded landlord was already there, he said. “It was on the one hand reassuring to know that we were both chasing the same opportunity,” said Hart, president and chief executive officer of closely held TruAmerica Multifamily. “On the other hand, it reinforced my opinion that large institutional real estate investors will be chasing yield far beyond the urban core.” Reprinted courtesy of Nadja Brandt, Bloomberg and Oshrat Carmiel, Bloomberg Ms. Brandt may be contacted at nbrandt@bloomberg.net Ms. Carmiel may be contacted at ocarmiel1@bloomberg.net Read the court decision
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Can an Owner Preemptively Avoid a Mechanics Lien?

May 25, 2020 — William L. Porter - Porter Law Group
Various sections of the California Civil Code, beginning with section 8000, protect the right of contractors, subcontractors and suppliers in the construction industry to obtain payment for work performed and materials supplied to construction projects. Under these statutes, unpaid claimants are entitled to use mechanics liens, stop payment notices and other methods to protect their right to payment. Mechanics liens allow unpaid claimants to sell the property where the work was performed in order to obtain payment. Stop payment notices force the owner or the bank to set money aside to pay unpaid claimants. Article XIV of our California Constitution even elevates the mechanics lien remedy to a “constitutional right”. The system generally works well, and claimants are paid. As someone who practices and teaches construction law, I have noticed a seldom used statutory tool that seems to provide a mechanism for property owners under certain circumstances to prevent subcontractors and suppliers from imposing enforceable mechanics lien on property where work was performed. Under California Civil Code section 8520, it appears that all that an owner of property need do to avoid a mechanics lien on its property is to give a proper notice (per Civil Code section 8100 et seq.) to a person who has a mechanics lien right (a subcontractor or supplier) that the owner is invoking Civil Code section 8520 and that if the claimant is unpaid for work performed or materials supplied to the owner’s property that the claimant must either provide the owner with a stop payment notice or forfeit the right to a mechanics lien on the owner’s property. This would allow an owner to avoid a mechanics lien on its property if the claimant failed to send a stop payment notice to the owner. Providing the “notice” under Civil Code section 8100 appears to be easy. It can be sent by “registered or certified mail or by express mail or by overnight delivery by an express service carrier”. It can even be by “hand delivery”. As far as the notice itself, it would seem that it can be very simple and easily performed under the process described below, which can be implemented within the office of any owner or developer. Read the court decision
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Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

NYC Developer Embraces Religion in Search for Condo Sites

October 15, 2014 — Oshrat Carmiel – Bloomberg
Extell Development Co., the New York builder that set off a luxury residential construction boom with its One57 project, is expanding its reach on Manhattan’s west side with a pending purchase of a synagogue and a plan to redevelop a Baptist church. Extell is in advanced talks to buy the Congregation Habonim synagogue at 44 W. 66th St. in a deal valued at $75 million, with plans to build condominiums on the site, according to documents the synagogue filed in New York State Supreme Court seeking permission for a sale. Extell also is negotiating with Calvary Baptist Church for a potential project at its 123 W. 57th St. site, on the same block as One57, the church’s 2014 annual report shows. Religious institutions across New York are pursuing real estate sales as land prices escalate. Manhattan development sites sold for an average of $657 a square foot in the third quarter, up 29 percent from a year earlier and a record for the period, Massey Knakal Realty Services said this month. Three purchases completed in the quarter were for more than $1,000 a square foot, the firm’s data show. Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg
Ms. Carmiel may be contacted at ocarmiel1@bloomberg.net

New York's Highest Court Says Asbestos Causation Requires Evidence Of Sufficient Exposure To Sustain Liability

May 10, 2022 — Rafael Vergara & Jhonattan N. Gonzalez - White and Williams
On April 26, 2022, the New York Court of Appeals described that in toxic tort cases a plaintiff can only establish liability-creating causation for an adverse health effect with “expert testimony based on generally accepted methodologies.” See Francis Nemeth v. Brenntag North America (N.Y. Apr. 26, 2022). The suit involved alleged asbestos exposure from talc. The plaintiff alleged liability for talc contaminated with asbestos that was ultimately used in a commercial talcum powder, Desert Flower, which the decedent applied daily from 1960 to 1971. At trial, the plaintiff proffered two expert witnesses, a geologist, Sean Fitzgerald, who testified about the “glove box test” and a doctor of internal medicine, Dr. Jacqueline Moline. Fitzgerald’s glove box test consisted of agitating a sample of Desert Flower in a Plexiglas chamber. Fitzgerald concluded that the asbestos fibers in the sample of Desert Flower were “significantly releasable” and that the decedent was exposed to thousands to trillions of fibers through repeated use. Dr. Moline concluded Desert Flower was “a substantial contributing factor” to the decedent’s peritoneal mesothelioma. The jury returned a verdict in the plaintiff’s favor. Reprinted courtesy of Rafael Vergara, White and Williams and Jhonattan N. Gonzalez, White and Williams Mr. Vergara may be contacted at vergarar@whiteandwilliams.com Mr. Gonzalez may be contacted at gonzalezj@whiteandwilliams.com Read the court decision
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Shea Homes CEO Receives Hearthstone Builder Humanitarian Award

February 12, 2014 — Beverley BevenFlorez-CDJ STAFF
Bert Selva, Shea Homes CEO, received the Hearthstone Builder Humanitarian Award at the 2014 NAHB International Builders’ Show in Las Vegas, Nevada, according to Big Builder. Selva “has served for 11 years on HomeAid's board of directors,” and “is a big supporter of the nonprofit that works to provide housing for homeless families, victims of natural disasters, and veterans.” Furthermore, “Shea Homes has built eight HomeAid shelter projects valued at more than $5.2 million and has contributed nearly $850,000 to HomeAid and its chapters, making it one of the group's largest benefactors.” Not only does Selva actively support HomeAid, he also “serves as a national vice president of the Muscular Dystrophy Association.” "I ask myself, 'How would it feel if that were me or my family?'" Selva told Big Builder. "When you personalize it, it becomes a lot more real and that's the motivation for me." The award “includes recognition at an event during the 2014 International Builders' Show and a cash award to a charity of his choice.” Read the full story, Jennifer Goodman’s Article... Read the full story, John McManus’s Article... Read the court decision
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Nomos LLP Partner Garret Murai Recognized by Super Lawyers

September 05, 2023 — Garret Murai - California Construction Law Blog
Nomos LLP Partner Garret Murai has been selected to the 2023 Northern California Super Lawyers list in the area of Construction Litigation. This is the tenth consecutive year that he has been recognized by Super Lawyers. Garret was also also featured in this year’s Northern California Super Lawyer’s magazine’s 20th anniversary cover story “Built Different” where he talks a bit about his practice and changes he has seen over the past 20 years as a construction lawyer. The following is an excerpt from the article:

“The New Reality of Work” Garret Murai, whose father was an architect, is a founding partner of Nomos LLP, an Oakland-based construction law firm. Concentrating in both commercial and public works, Murai’s clients run the gamut from contractors and subcontractors to owners and developers.

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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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