Florida Construction Lawyer Blog

September 21, 2021

Firm Updates from the Managing Partner

by Steven M. Siegfried

Steven M. Siegfried

As we approach the last quarter of 2021, I wanted to check in with our readers to provide some updates from our firm.

While many of us expected the pandemic to be in our rearview mirror, COVID-19 continues to affect our community, creating challenges for how we all live and work. As a business, we have felt the importance of our mission to be a reliable resource for our clients more than ever. We continue to publish articles and offer webinars to provide you with real-time updates and helpful information to help you make better decisions for your business/community.

Our firm has also hit some significant milestones this year. We’ve added new members to our team and hope to continue growing our Siegfried work family in the coming months. Together, we’ve been able to showcase our expertise both in the media and virtually, sharing our insights with thousands of people on several important topics.

August 25, 2021

Firm’s Jason Rodgers-da Cruz Co-Authors Chapter in American Bar Association Forum on Construction Law’s “Construction Trial Deskbook”

by Siegfried Rivera

Siegfried Rivera

Our firm is known around the country for our work in construction law-related matters. Recently, we were privileged to have been selected to have Jason Rodgers-da Cruz co-author one of the chapters for the American Bar Association’s newly released “Construction Trial Deskbook.”

The chapter, which is titled “Jury Instructions and Verdict Forms,” serves as a resource for construction attorneys preparing for trial. This trial practice handbook was written by construction lawyers who, collectively, have decades of trial experience. The book follows a trial sequence, with chapters on jury selection, opening statements, direct and cross-examination, handling experts and exhibits, jury instructions, and closing.

Our firm congratulates Jason Rodgers-da Cruz for his participation in developing such an essential chapter in a book that will play a vital role in assisting construction attorneys preparing to go to trial. Click here for more information on the new book.

May 25, 2021

Using a Construction Lien to Secure Payment

by B. Michael Clark, Jr.

B. Michael Clark, Jr.

It is essential for those in the construction industry, including contractors, subcontractors and suppliers, to learn about construction liens, which can be an additional layer of protection from non-payment. A construction lien provides unpaid project participants the ability to claim an interest in the property they have worked on. Once recorded, the lien remains on the title of the property until the lienholder gets paid for the work or services it provided, or the lien is otherwise released or discharged.

Though a helpful option in recovering unpaid amounts, the process of recording a construction lien is technical, and failing to follow specific requirements, some of which are outlined below, can result in a lien that is not perfected and subject to challenge. The following suggestions should be considered when filing a construction lien:

Serve a Notice to Owner

Most claimants who do not have a direct contract with an owner need to serve a Notice to Owner as a first step in perfecting a claim of lien. Subcontractors, sub-subcontractors and material suppliers working on a construction project must serve a Notice to Owner pursuant to Section 713.06, Florida Statutes, within 45 days of first performing work or furnishing materials. Doing so preserves their right to record a claim of lien. Failure to properly complete this step can make a future claim of lien unenforceable.

April 7, 2021

Can a Surety Benefit from a “No Damages for Delay” Clause in a Bonded Construction Contract?

by Nicholas D. Siegfried

Nicholas D. Siegfried

“No damages for delay” clauses are frequently inserted into contracts between owners and contractors as well as those between contractors and subcontractors, either directly or through flow down and incorporation by reference clauses. A no damages for delay clause is generally enforceable in Florida, unless the party seeking to enforce it is guilty of fraud, bad faith or active interference with the work of the party impacted by the delay.

As part of basic suretyship law, the surety of the contractor steps into the shoes of the contractor and has all the defenses the contractor would have to a delay claim, including asserting the no damages for delay clause. However, to be enforceable, the defense of a no damage for delay clause must comply with the Miller Act, and as one district court noted, the availability of a no damages for delay defense for a surety is a field of law that is rapidly evolving.

In United States for Use and Benefit of McCullough Plumbing, Inc. v. Halbert Construction Company, Inc., (Halbert) an issue arose as to whether a no damage for delay clause is void if it fails to comply with the rights and responsibilities created under the Miller Act.

March 15, 2021

A Message from Our Managing Partner: One Year Post COVID-19 Closures

by Siegfried Rivera

Siegfried Rivera

It is hard to believe that we are officially one year into the COVID-19 pandemic. As the entire world continues to battle the virus and adjusts to the daily changes in protocol and restrictions, our firm remains fully operational, staying up-to-date with the latest news and making decisions based on those developments.

With our staff’s, clients’, and families’ health and safety remaining of utmost importance, our firm continues to operate with a majority of our attorneys and support staff working remotely. We are happy to say that we have all remained safe during this time and the initial closures never caused any interruptions or delays in service. We have also pivoted in the way we serve our clients by upgrading our network’s infrastructure and making improvements to how we conduct business, such as enhancing our data security and offering digital document signature options as well as online notaries. Though we’ve all had to overcome our own set of challenges, we have conquered them together and have only become stronger.

March 2, 2021

Article by Michael Clark in today’s Daily Business Review: “Certified Question to High Court: Do Original Arbitration Provisions Apply to Subsequent Homebuyers?”

by Siegfried Rivera

Siegfried Rivera

An article authored by the firm’s B. Michael Clark, Jr. is featured as the expert guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Certified Question to High Court: Do Original Arbitration Provisions Apply to Subsequent Homebuyers,” focuses on the contractual provisions prescribing arbitration as the means of dispute resolution for construction defect claims. These stipulations, which are used by developers for sales of their new homes, are probably known and understood by the initial buyers of newly built properties, but are subsequent buyers of these homes also subject to the arbitration provisions of the original warranty deeds? Michael writes that is the question that an appellate court has certified as one of great public importance for consideration by the Florida Supreme Court. His article reads:

. . . In Hayslip v. U.S. Home, the Hayslips appealed a nonfinal order granting U.S. Home Corp.’s motion to stay their claim and compel arbitration pursuant to the terms of the original special warranty deed for the property. As subsequent buyers of the home from the original owners, the Hayslips asserted they were not bound by the arbitration provision because it is not a covenant running with the land but rather a personal covenant binding only to the original purchasers.

The Second District Court of Appeal found a valid arbitration agreement existed and, as a restrictive covenant running with the land, the arbitration provision contained in the original special warranty deed bound the Hayslips to arbitrate as subsequent purchasers. The court affirmed the circuit court’s order compelling arbitration, but it certified a question of great public importance to the Florida Supreme Court as an issue of first impression.

February 12, 2021

Ruling Clarifies What Constitutes Construction of Property Improvement Under Florida’s Statute of Repose for Defect Claims

by B. Michael Clark, Jr.

B. Michael Clark, Jr.

A 2019 Florida appellate court ruling in a case against a homebuilder alleging negligent construction of an attic ladder provided added clarity over what constitutes the construction of an improvement to real property under the state’s statute of repose law.

In James Harrell v. The Ryland Group, the First District Court of Appeal considered an appeal of a final summary judgment entered in favor of Ryland over the applicability of the 10-year statute of repose and whether the homebuilder failed to establish that the period of repose had run.

The case originally stemmed from injuries sustained by Harrell when the attic ladder he was climbing at his home collapsed. His lawsuit alleged that the homebuilder was negligent “by failing to ensure that the attic ladder was installed in a secure manner with the appropriate hardware” and “by failing to verify that the ladder was secure before selling the home.”

The builder filed a motion to dismiss, arguing in part that the claim was barred by the 10-year statute of repose of section 95.11(3)(c), Florida Statutes. The trial court found that the statute is applicable because an attic ladder is an improvement to real property, but it denied the motion because it was not clear from the face of the complaint whether the suit was filed before the expiration of the 10-year period.

February 5, 2021

Surety Can Use Defaulting General Contractor to Complete Project Without Owner’s Concurrence

by B. Michael Clark, Jr.

B. Michael Clark, Jr.

When a property owner finds defects in its general contractor’s work, declares the contractor to be in default and terminates the construction contract, perhaps the last thing it expects is to be forced to rely on the defaulting contractor to complete the project. Yet that is exactly what happened to a Marathon, Fla. condominium association after the provider of its surety bond elected to retain the original contractor to complete the project.

In Seawatch at Marathon Condominium Association v. The Guarantee Company of North America et al., the Florida Keys condominium association retained Complete Aluminum General Contractors for a $5.4 million construction contract for extensive renovations to the community’s three condominium buildings (pictured here). The Guarantee Company of North America executed a surety bond to secure CAGC’s performance under the contract for the association.

When the association discovered defects in the renovations, it declared the contractor in default and terminated the contract. It then requested Guarantee to promptly exercise one of its options pursuant to the performance bond.

August 4, 2020

The Real Deal Chronicles Stuart Sobel, Nicholas Siegfried’s Work Representing Contractor in Suit Against Codina Partners

by Siegfried Rivera

Siegfried Rivera

Firm shareholders Stuart Sobel and Nicholas D. Siegfried were quoted in an article that now appears on the main South Florida page of The Real Deal, the real estate news magazine and website. The article, which is titled “Codina Partners affiliate allegedly owes $3.6M for Downtown Doral condo construction: lawsuit,” focuses on the firm’s work on behalf of the general contractor for the prolific developer’s new 5350 Park condominium tower in Downtown Doral. The article reads:

. . . Grycon LLC is suing 5350 Park LLC and the project’s surety bond provider Arch Insurance Company in Miami-Dade Circuit Court for breach of contract. According to the complaint, Grycon hasn’t been paid for $3.1 million in construction services and $500,000 in bonuses for achieving completion milestones.

In February, the 20-story, 238-unit tower and attached garage were substantially completed, and buyers began closing on 5350 Park condos, the lawsuit states.

“When it came time to pay us and settle up, [the developer] has come up with excuse after excuse,” said Stuart Sobel, a Siegfried Rivera shareholder representing Grycon. “They have played it very heavy-handed.”

April 13, 2020

Tactics for General Contractors Responding to Coronavirus Pandemic

by Nicholas D. Siegfried

Nicholas D. Siegfried

For the South Florida construction industry, the coronavirus pandemic has caused suspensions of construction projects and a complete shutdown of the permitting/inspection department in Miami-Dade County. Contractors facing these and other challenges during the COVID-19 outbreak will need to consider several strategies to help mitigate the impact and decrease their losses.

The process should begin with thorough contract reviews by qualified construction attorneys for their “force majeure” provisions, which are typically incorporated in construction contracts to afford contractors with relief in circumstances that are considered “acts of God,” “unforeseen events” or “natural disasters.” These clauses may allow contractors to obtain time extensions on completions and possibly also recover additional costs or increase their total payment terms.

Legal counsel will evaluate whether current conditions categorize the COVID-19 outbreak as a force majeure event or whether other contractual provisions may apply to allow for claims for added costs and time extensions. Though a virus has never impacted the construction industry to this magnitude before, contractors may be able to turn to force majeure law or other similar contract provisions to file claims and seek damages.

Contractors will also need to follow the notice provisions under their contracts for communicating delays and additional costs. It is essential to use their contracts as the guide for the time limits for giving proper notice as well as determining who must be copied on the notice and how it should be delivered.