One of the largest groups for construction lawyers is the American Bar Association’s Forum on the Construction Industry.  In the weeks leading up to to the Forum’s 2012 annual meeting in Las Vegas, Nevada last month, a number of construction attorneys and I were feverishly reviewing submissions for Division 10’s annual Construction Law Update.  The document is a compilation of cases and legislation affecting the construction industry.  The updates are provided throughout the year by attorneys all over the country.  This year, Division 10 released its 6th Annual Update.

The following are examples of the types of information that you will find in the Construction Law Update: Cases and Legislation Affecting the Construction Industry (2011-12):

  • Senate Bill Number 59, Alabama 2011 Regular Session. The bill amends §§ 6-5-221, 6-5-222, 6-5-225 and 6-5-227, Code of Alabama, 1975, reducing the statute of repose for actions against an architect, engineer or builder from 13 years to 7 years from the substantial completion of the construction of an improvement on or to real property. This Bill will become effective upon signature and approval by Governor Robert Bentley.
  • In William Smith v. Krishna Pinnamaneni et al., 2011 Ariz.App. LEXIS 59, 607 Ariz.Adv.Rep. 35, (2011), the Arizona Court of Appeals held that the defense of lack of licensure could be waived if not timely and appropriately raised in an arbitration proceeding. Accordingly, the Court rejected defendants’ claims that the plaintiff contractor was not appropriately licensed and therefore was precluded by statute from pursuing its affirmative claim when defendants first raised the defense after plaintiff moved to confirm the arbitration award. The Court noted that contracts executed by unlicensed contractors are voidable, not void, and that unlicensed contracting constituted an affirmative defense that could be waived like any other affirmative defense.
  • In Midwest Asphalt Coating Inc. v. Chelsea Plaza Homes Inc, 45 Kan.App.2d 119, 243 P.3d 1106 (Kan.App. 2010), the Court reaffirmed that claims for breach of contract and quantum meruit are mutually exclusive and a quantum meruit claim is permitted only if the contract is unenforceable. Additinally, pursuant to Kansas Fairness in Construction Act (K.S.A. §§ 16-1805 and 16-1806) attorney fees and costs are recoverable only if “undisputed” sums are not timely paid. Here there was a dispute if the work was completed and thus the amount owed was disputed. The Court also reasoned that even if it was a quantum meruit claim the amount was not liquidated or still in dispute until an award was made and thus fees are not recoverable.
  • In Voigt Consultants, LLC v. Plymouth Crossroads Station, LLC, 2011 WL 1119697 (Minn. Ct. App. March 29, 2011), the court held that, in order for a mechanic’s lien to have priority, a mortgage holder must have actual notice that the lien claimant had not been paid. Moreover, the mortgage holder has no affirmative duty to inquire about whether the mechanic’s lien claimant has been paid in full.

There are updates from all over the country.  In addition, we have included references to recent federal legislation that affects the construction industry. If you would like a copy of the Construction Law Update, all you have to do is the following:

  1. First, go to the ABA Forum’s main website
  2. Then,  look to the left column and connect with the Forum via Facebook LinkedIn, or Twitter
  3. Finally, send me an email saying which you did.

If you would like copies of the past year’s updates, please see my Resources, Articles, Presentations page.