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December 2015

Construction Law Update

Fourth Quarter 2015

Gordon & Rees's Construction Group is pleased to publish the latest issue of our Construction Law Update, a quarterly take on trends of interest to design professionals, contractors, and developers throughout the country.

INSIDE THIS ISSUE
  1. Constructing a Clearer Path to Lien Recovery For Design Professionals in Illinois

  2. Lien On Me – Mechanical Liens And Design Professionals Liens

  3. Gordon & Rees Construction Attorneys Making Headlines

  4. Gordon & Rees Construction Law Blog

  5. About Gordon & Rees's Construction Group

I. Constructing a Clearer Path to Lien Recovery For Design Professionals in Illinois
   
By Thomas G. Cronin
 

The Illinois Supreme Court recently engineered a clearer understanding of the route for design professionals to recover under the Illinois Mechanics Lien Act (“Act”) (770 ILCS 60/1 (West 2008)). In fact, thanks to the recent decision in Christopher B. Burke Engineering, Ltd., v. Heritage Bank of Central Illinois (Docket No. 118955, November 19, 2015), the scope for potential claims to be made by architects, engineers, land surveyors, and property managers under the Act has just been clarified and, for the foreseeable future, finalized.

To read a full, expanded version of this article, click here.

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II. Lien On Me – Mechanical Liens And Design Professionals Liens
   
By Kimberly A. Blake
 

On July 1, 2012, SB 189, SB 190, AB 456, and SB 424 became effective, revamping California’s Design Professionals Liens and Mechanics Liens statutes. Although it has been a few years since the statutes became effective, this article provides a general overview of the purpose and foundation of these remedies, the process of obtaining them, and the effect of the recent changes.

The California Constitution provides that “[m]echanics, persons furnishing materials, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.” (Cal. Const., art. XIV, § 3.)

To read a full, expanded version of this article, click here.

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III. Gordon & Rees Construction Attorneys Making Headlines

Gordon & Rees Las Vegas Team Successfully Argued Two Appeals Before The Nevada Supreme Court
On November 18, 2015, the Supreme Court of Nevada issued an order reversing the district court’s ruling that a national homebuilder waived its right to compel arbitration. Specifically, the Supreme Court concluded that the mere passage of time does not constitute prejudice sufficient to satisfy the third prong of Nev. Gold & Casinos, Inc. v. American Heritage, Inc., which requires a showing of prejudice in order for there to be waiver. The Supreme Court further concluded that the district court’s application of the doctrine of laches was in error and did not warrant denial of the motion to compel. Additionally, the Supreme Court ruled that subsequent purchasers are estopped from refusing to comply with arbitration clauses in the original homeowners’ sales agreements when they avail themselves to the benefits of the contract. The practical effect of this ruling is that where homeowners assert claims based on the purchase agreements, they are bound by the arbitration provisions therein.

The Supreme Court also issued an order granting in part and denying in part a Petition for Writ of Mandamus that sought to vacate a district court order granting the national homebuilder's motion to compel arbitration. The Supreme Court (correctly) vacated the district court order compelling arbitration for two homes where the national homebuilder did not produce original sales agreements. It affirmed, however, that subsequent purchasers are estopped from refusing to comply with arbitration clauses in the original homeowners’ sales agreements when they avail themselves to the benefits of the contract. Additionally, it ordered the district court to provide an analysis of any unconscionable language in the national homebuilder's various sales agreements and sever the unconscionable terms pursuant to the severability clause set forth in each contract.
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After a week long trial a Massachusetts jury returned a defense verdict to Boston partner, Jay Gregory in an architectural malpractice case. The plaintiff, the owner of a 180-unit apartment building, sued its architect claiming to have incurred approximately $375,000 in damages as a result of the architect’s negligent design of a $10,000,000 renovation project. More

Partner Robert Modica and Senior Counsel Ryan Sestack of Gordon & Rees's New York office obtained summary judgment on behalf of their client, an energy company. After being injured while performing maintenance work on company property, the plaintiff brought claims for violation of Sections 200, 240, and 241 of the New York Labor Law (“NYLL”), which is intended to provide heightened protection for construction workers engaged in construction activities. More

On October 29, 2015, the Central District of California granted a defense motion by Gordon & Rees for partial summary judgment in a significant architectural copyright case, rejecting as a matter of law plaintiff’s claim that construction of a major addition to a major Southern California hospital constituted copyright infringement under the Architectural Works Copyright Protection Act of 1990. More

Portland Partner Daniel Nichols spoke at the MC Consultants West Region Construction Litigation and Insurance Coverage Conference in San Diego in September. Mr. Nichols participated in a panel discussion of emerging trends in the Pacific Northwest.

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IV. Gordon & Rees Construction Law Blog

The Gordon & Rees Construction Law Blog continues to post new content addressing topical issues affecting the construction industry throughout the country. From analysis of new court decisions, discussions of timely legislation, and commentary on real-world, project-specific issues, Gordon & Rees’s Construction Law Blog provides insight on the issues that affect the construction industry now.

We invite you to visit the blog at www.grconstructionlawblog.com and see for yourself what we are up to. If you like what you see, do not hesitate to subscribe under the “Stay Connected” tab on the right side of the blog. There you can choose how you would like to be informed of new content (Twitter, LinkedIn, email, etc.). If you have any questions about the blog or would like to discuss further any of its content, please do not hesitate to contact us.

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V. About Gordon & Rees's Construction Group

Gordon & Rees's Construction Group consists of more than 80 lawyers covering the nation in 37 offices. In 2015, the firm opened offices in Harrisburg, Penn., Boston, Mass., Wheeling, W. Virg., and Columbus, Oh.

Gordon & Rees’s construction attorneys focus their practice on the comprehensive range of legal service required by all participants in the construction industry – architects, engineers, design professionals, design joint ventures, owners, developers, property managers, general contractors, subcontractors, material suppliers, product manufacturers, lenders, investors, state agencies, municipalities, and other affiliated consultants and service providers.

We serve clients who design, develop, or build all types of structures, including commercial buildings, single and multifamily residential projects, industrial facilities, universities, hospitals, museums, observatories, amusement parks, hotels, shopping centers, high-rise urban complexes, jails, airports, bridges, dams, and power plants. We also have been involved in projects for tunnels, freeways, light rail, railway stations, marinas, telecom systems, and earth-retention systems. Our experience includes private, public, and P3 construction projects.

If you have questions about this issue of the Construction Law Update or our nationwide construction practice, click here to visit our practice group page or contact partner Tom Cronin.

Thomas G. Cronin
Gordon & Rees, LLP
1 North Franklin
Suite 800
Chicago, IL 60606
(312) 980-6770
tcronin@gordonrees.com

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