Resolving Disputes by Expert Determination

Increasingly we are seeing insurance policies and construction agreements that call for disputes to be resolved by a technical expert – such as an architect or engineer.  This technical expert is charged with the responsibility to review project details and make decisions that will bind the parties.  Known as expert determination, the use of technical experts to decide disputes can help streamline the dispute resolution process.  But, what happens when one party refuses to follow the expert’s decision or the parties cannot agree on what facts and documents the expert should consider in making a decision? Florida law does not provide clear answers about how courts should treat the decisions of experts.  Shumaker attorney Brian Willis takes a detailed look at these issues and more in his article “Resolving Disputes by Expert Determination: What Happens When Parties Select Appraisers, Accountants, or Other Technical Experts to Decide Disputes,” The Florida Bar Journal (Vol. 91, No. 7).

FL Bar Seal Logo

Construction Liens in Florida – The Timing and Manner of Perfection are Critical

Christopher Staine

Among the hottest and most relevant blog and article topics is the subject of construction liens.  No matter the quantity or ubiquity of such articles, construction liens are and will always be among the most highly discussed topics in the construction industry.  This is because of the tremendous extra-contractual power legislators granted those not in direct privity of contract with property owners – the lower-tiered lien claimants.  While contractors also possess the same ability to impress upon an owner’s real property a construction lien in the event of non-payment, the strength lower-tiered lienors possess in the event of non-payment is virtually unparalleled when compared to just about every other area of the law.  But, in order for lower-tiered lienors to take advantage of such power, they must fully and completely comply with all notice requirements as part of the lien perfection process.  The same holds true for contractors, albeit with slightly fewer lien perfection considerations.  Continue reading “Construction Liens in Florida – The Timing and Manner of Perfection are Critical”

Favorable Ruling for Condo Associations in Second DCA

Recently, in Ventana Condominium Ass’n, Inc. v. Chancey Design Partnership, Inc., et al., 2016 WL 4259999 (Fla. 2d DCA), the Second District Court of Appeal held that the Plaintiff, Ventana Condominium Association, Inc. (the “Ass’n”), was not the successor in interest to the prior owner of Ventana Condos, Ventana Tampa, LLC (the “Developer”), and reversed the trial court’s grant of summary judgment that had been contingent upon such a relationship between the two.[1]

Sometime prior to July 2008, the Developer of the Ventana Condominiums (the “Condos”) contracted with Hardin Construction Company, LLC (“Hardin”) to build the Condos, and with Chancey Design Partnership, Inc. (“Chancey Design” or “Chancey”) to design them. Issues with delays and additional costs arose, and the Developer and Hardin entered into a Mediated Settlement Agreement (the “MSA”) which provided, among other things that: (i) Hardin was given authority to take action on behalf of the Developer against Chancey Design–although it made no mention of this being an assignment of the Developer’s interest in any such claims; and (ii) that the MSA was binding upon the parties’ successors, assigns, and all those holding title under them. Continue reading “Favorable Ruling for Condo Associations in Second DCA”

Improving Waterfront Property: Challenges to the Fifty Percent Rule are Strictly Construed

Anyone working in waterfront construction long enough has a story (or knows someone who does) about pulled permits or burdensome local rules and regulations which may turn a waterfront dream renovation into a nightmare. Recently, Florida’s Second District Court of Appeal confirmed that some waterfront construction is just not meant to be. But, the Court’s ruling as to waterfront construction, which seems patently unfair from a practical standpoint, is not the only takeaway from Bair v. City of Clearwater, Case No. 2d15-1210 (Fla. 2d DCA, August 5, 2016). On its surface, Bair is cautionary tale for waterfront property owners regarding the strict statutory interpretation of the Bert J. Harris, Jr., Private Property Rights Protection Act[1] (the “Bert Harris Act”); however, it also contains a postscript for legal practitioners concerning equitable estoppel as a standalone claim.[2] Continue reading “Improving Waterfront Property: Challenges to the Fifty Percent Rule are Strictly Construed”

DOJ Hikes Fines for Immigration Related Violations

Ramos_Maria_LI
Maria del Carmen Ramos

Despite the numerous Immigration and Customs Enforcement (ICE) headlines, the last two years have brought a significant decrease in workplace audits: 3.127 audits in 2013 to 435 audits in 2015. Similarly, the fines during this time have dropped from $9.5 million in 2013 to $4.62 million in 2015. To put this in perspective, ICE assessed about $31.2 million in fines as a result of over 9000 worksite inspections between 2009 thru 2012. But it seems that this lull is about to come to an end.

On June 30, 2016, the U.S. Department of Justice (DOJ) published a rule that will result in an increase of anywhere from 35% to 96% in possible penalties for immigration related violations. For example, the minimum penalty for employing individuals not authorized to work in the U.S. will increase from $375 to $539, while the maximum penalty will go up from $3200 to $4313. Employers with multiple violations, which originally resulted in a penalty from $4300 to $16,000, will now be faced with a penalty of $6469 to $21,563. Similarly, the possible fines for Form I-9 paperwork violations nearly doubled. Fines now will be in the range of $216-$2156 per violation rather than $110-$1100 per instance. Continue reading “DOJ Hikes Fines for Immigration Related Violations”

Vesting and Priorities of Competing Construction Liens

Abate_Anthony_LI
Anthony Abate

Introduction

It goes without saying that a construction project involves a plethora of competing interests. There is a lender, a main contractor, subdivision improvers, architects, and many different subcontractors, all of which are competing for limited funds meant to be exchanged for labor, services, and materials. In an ideal world, there are enough funds to pay the full value of all claims for work, services, and materials furnished.  However, this is not always the case and is a main reason why Florida has such an in-depth statutory scheme governing construction liens and other claims to funds.  As such, this article intends to address the basic vesting and priorities among competing liens.

A.     Relation Back Doctrine

The most basic rule for maximizing your chances of getting compensated for work, services, or material furnished is: first in time, first in right. Simply put, the first to record their lien will take priority over subsequently recorded liens. Continue reading “Vesting and Priorities of Competing Construction Liens”

2016 Continuing Contractor Education Seminar

If you are in the Charlotte, North Carolina area and need to obtain Continuing Contractor Education Credit for Florida, join Shumaker, Loop & Kendrick, LLP on July 19, 2016. The program will provide 4.0 credit hours covering:

  • The ABC’s of Florida Construction Lien Laws
  • Contract Changes, Constructive Changes
  • Differing Site Conditions
  • Chapter 558 & Other Notable Dispute Resolution Provisions

To RSVP contact Elizabeth Barnett at ebarnett@slk-law.com or 704.945.2171.

CHA Construction Law Seminar