WA Supreme Court: State Statutes of Limitation Do Not Apply in Arbitration on Construction Defects

WA Supreme Court: State Statutes of Limitation Do Not Apply in Arbitration

The Washington Supreme Court handed down a surprising and perhaps monumental holding on Thursday. In Broom v. Morgan Stanley DW, Inc., No. 82311-1 (7/22/10), the Court ruled that Washington statutes of limitations are not applicable to arbitration proceedings. The ruling perhaps creates an opening for claimants who have arbitration clauses, but thought their claims had expired.
The theory behind the Court’s ruling is that the state’s statutes of limitation require “actions” or a “suit” to be filed in order to be effective, do not apply to arbitration proceedings, which are not “actions” or “suits” as defined by law. Absent contractual agreement to the contrary, the Court will not impose those statutes of limitation in an arbitration proceeding.

READ THE REST BY CLICKING HERE

 

No more smoking on the balcony in Santa Monica; personally, I hate cigarettes...my Mom died of cancer, probably from her smoking. Fires and health issues are good reasons to ban smoking on multi-family properties. I don't want to smell or be exposed to your toxic waste wafting into my unit.  Readers, what do you think?

Santa Monica Snuffs Out Patio, Balcony Smoking

Friday, July 30, 2010, by Neal Broverman

3

After pushing to end smoking on the Santa Monica pier, the City Council on Tuesday banned "people from lighting up within 25-feet of a door or window in any multi-unit residential building," reports the Santa Monica Daily Press. The action was aimed specifically at those who light up on balconies and patios. The 4-1 move was dissented by Councilman Bobby Shriver, who would have preferred other methods of cessation, including having apartment owners designate certain units as non-smoking. That idea was tabled until November--there's concern that method could scapegoat low-income smokers and encourage landowners to evict them. In November, voters will decide on a renter protection measure which would alleviate eviction concerns. The funny thing about these smoking bans--lighting up is a no-go on the Promenade and at outdoor restaurants--is that for some of them violators can only be punished by being hauled into small-claims court. Fines won't be incurred with this new law, nor are there fees for the ban on smoking in apartment and condo common areas--people have to be sued, and penalties start at $100.

Engrave A Crete Published Idea Book on Decorative Concrete Ideas.

The full-color Concrete Engraving Idea Book from Engrave-A-Crete is full of examples of beautiful decorative concrete floors both stained and engraved.
Some of the most common stain color combinations and the most popular engraved designs are represented.
This is an excellent way for homeowners to see what is possible with decorative concrete staining and engraving.

This Concrete Engraving Idea Book is in Adobe PDF Reader format, and is free to download.

Help Wanted Ad On Craigslist --Waterproofing Company Will Pay A Percentage of Job as Compensation-Could That Cause Shortcuts?

 The ad below is/was on Craigslist...if you read down through, you'll see under the "compensation" section that the pay is a percentage of the job...

If this company is going to do your work, be careful...the foreman and his 2-3 guys that show up to do the work will be motivated to get in and get out as FAST as possible...

Your job could be at risk because the company's foreman's sole motivation is to make as much per hour as possible.   Lets say your job is contracted at $10,000.00. The crew foreman is probably going to get 50-60% of the total cost of the job...and the house keeps 40-50%. Lets say in this example the foreman will get "paid" $6,000.00. Out of the foreman's share is going to come the labor for his helpers...maybe $2,500.00 in labor costs. Or lower your costs even further and pick up some guys at Home Depot?

Then he has to buy the materials too...typically 25-30% of the costs of a job, so that's apx $2,500.00. Hmm, how does one reduce his costs? Buy cheaper materials...better be sure your getting what's stated on the contract. If even any specific product is called out for. Those scopes of work that say "metal lath, polymer modified cement, fiberglass and acrylic resin...you ain't getting a brand name system, your getting Jet Coatings or Home Depot cements and resins.

So now your down to $1,000.00 out of the 6k. That will have to pay any gas and misc expenses too. Say $150.00 on that...Now your foreman on the job is down to $850 in his pocket. How hard do you think he's going to be driving his crew to finish? Hard.

 Will your job be done right? Maybe...maybe not. The devil is in the details...did they spend time on those details or did they say "good enough? and not worry about the details? Even a bad job can last a year or two before going bad.

I can't say that this is the case here, but it would give me cause for concern...just saying.

deck coating waterproofing (laguna beach and surround orange county )

---

Date: 2010-07-29, 11:07AM PDT
Reply to: rcmetcalf@upcom.net ^{[Errors when replying to ads?]}

---

looking for responsible reliable person to perform all deck coating and related responsibilities ie; metal flashing, removal and replacement of damaged areas, must know and be skilled to perform all and or partial processes of fiberglass, urethane, and epoxy deck coating systems, must have own tools and transportation. those without these and no experiece need not apply thanks 1800 559-5482

• Location: laguna beach and surround orange county
• Compensation: percentage of job
• This is a part-time job.
• Principals only. Recruiters, please don't contact this job poster.
• Phone calls about this job are ok.
• Please do not contact job poster about other services, products or commercial interests.

PostingID: 1870014945

Deck Expert Recommends You Read DURADEK President John Oglivie's White Paper on Waterproofing and Tile Decks-BEFORE YOU TILE, Not After.

One of our advertisers (full disclosure here) has just published a white paper on the waterproofing and tiling of decks over living space.

Entitled "COMMON SOURCES OF FAILURE OF TILE DECKS ON WOOD FRAME CONSTRUCTION" the article discusses the issues and problems that result when one cheaps out on properly preparing and waterproofing the deck, the importance of drainage planes and Duradeks recommendations. John Oglivie, president of Duradek, is the author.

Here's an excerpt from John's article. 

There are few outdoor surfaces as attractive and durable as tile or stone and they can be used outdoors even in very extreme climates providing there is a great deal of care put into the choices of materials and trades people. As so often happens, attempts to cut corners on costs or by taking shortcuts, even ones that seem to make sense, result in the most expensive installations. The common themes in this report are to follow the manufacturer’s recommendations to the letter and employ only experienced professionals for each part of the job. The chances of a successful, long lasting installation increase exponentially if you do.

 The most surprising thing we discovered was that that if you were willing to research the issue and look to the industry experts and follow the recommended “best practice” standards, the success rate would be dramatically increased. Simply knowing the questions to ask and who to ask is the first step to getting the right answers.
Some of the best advice given to us by a “long in the tooth” tile contractor was this: He tells his customers who are interested in having tile or stone outdoors (especially on a wood frame building) that if they don’t have a budget sufficient to do it properly they should not even consider it. Taking money-saving short cuts with an “assembly” that requires all the components to work together could prove to be extremely expensive in the long run.


Click here to read the rest of this article at Duradek.com
 read this article or you'll probably pay a heavy price to fix the failures that commonly occur...

San Fran Based Swinerton Builder's Settles Oregon CD Lawsuit for 42 Million

Business torrents

Economic news

Settlement reached in $42 million construction defect case

Written on July 24, 2010

A confidential settlement has been reached in what may be the largest construction defect lawsuit in Oregon history.
The case was filed Aug. 8, 2008 in Multnomah County Circuit Court by Wyndham Resort Development Corp. and The Resort at Seaside Condominium Association against Swinerton Builders, a San Francisco-based general contractor.
The roughly $42 million lawsuit accused Swinerton — which was operating in Oregon as Swinerton Builders of Oregon — of breach of contract, negligence and breach of warranty for construction defects at The Resort at Seaside, an eight-story, 414,970-square-foot beachfront condominium completed in 2003.

READ THE REST BY CLICKING HERE

Just because you can use a gas or propane grill on an apartment or condo deck, doesn't mean you should.

From ABC 

 

By James Swierzbin, ABC 5 News Reporter

Easy Grill Tips to Help Prevent Fires

The majority of grill fires aren't the result of a mechanical malfunction, they're caused by human error. Thankfully just a few simple steps could help protect yourself and property from dangerous flames.

Even before a grill is ignited there are a few things you can do, to lessen the chance of a fire. According to Urbandale Fire Chief Jerry Holt, you should "Make sure you've moved (the grill) away from anything combustible...and one of the things you can do, is at least once a year, is to make sure that all your connections are tight, and there's not gas leaks."

You can also use what's called the "Soapy Bubble Test" All you have to do is take a spray bottle, fill it up with a mixture of soap and water, and spray it on anything that connects a propane tank to a gas grill. If you see bubbles start to form, in the areas you sprayed, then you know that you have a potentially dangerous leak.

If you do discover that your propane tank or gas line is compromised it's best to shut it off immediately, and take the problem, to someone who knows how to repair what's broken, rather than trying to fix it yourself.

And perhaps more important than anything else is exercising caution and good judgement.
Just because you can use a gas or propane grill on an apartment or condo deck, doesn't mean you should. Because if a fire breaks out in such an enclosed space, it has the potential to spread, very quickly.

FROM FireEngineering.com-Article- Construction Concerns: Combustible Metal Deck Roofs

For decades, builders have been using metal roof decking supported by bar joists, covered with combustible insulation board and a roof membrane that is often topped with gravel. The earliest of these roofs had melted asphalt mopped onto the steel roof deck to hold down the insulation board with additional melted asphalt mopped between and on top of the layers of roofing felt. This was known as a “built-up” roof and was inexpensive when compared with other types of roofs.

(1)
A potential problem with this type of roof was recognized more than 50 years ago: If a fire heated the underside of the roof deck, it could melt, vaporize, and ignite the asphalt on top of the deck, starting another fire in addition to the original one inside the building (see Brannigan’s Building Construction for the Fire Service 4^th Edition, 213-214). This roof fire could spread far ahead of the original fire and ignite other fires when burning asphalt found its way through the steel deck.

Roofs of these types are sometimes inaccurately advertised as “fire-rated.” They do not have a “fire rating” from testing under National Fire Protection Association (NFPA) 251, Standard Method of Tests of Fire Endurance of Building Construction and Materials (ASTM E119) like a wall or a floor-ceiling assembly. Rather, they have been tested under NFPA 256, Standard Method of Fire Tests of Roof Coverings (UL 790; ASTM E-108) for exposure to fires originating outside the building. They are rated Class A (severe), B (moderate), or C (light), based on the severity of fire exposure they can withstand. Tests for the rating include ignition from flaming brands, intermittent flame exposure, rain, weathering, and flame spread.

READ THE REST BY CLICKING HERE!

Blastrac Searching for Oldest Blastrac Shot Blaster

Blastrac

Blastrac is preparing for the future and looking forward towards World of Concrete in January 2011, the premier show for all things concrete. With a strong presence planned for the next WOC, Blastrac is launching a search for the oldest operating 1-10D shot blaster still used for surface prep today. Blastrac is offering to prominently feature the qualifying machine in the Blastrac exhibit at WOC 2011. Exciting details for the owner of the machine will be announced on their website in the coming weeks at www.blastrac.com.
If your Blastrac 1-10D shot blaster has stood the test of time and you would like to submit that shot blaster for consideration as the oldest model in operation, call Jonn Rippman, National Sales Manager and Training Director, at 800-256-3440, ext. 3170 to relay your information. Or, if you would prefer to email your submission, send the serial number of the 1-10D machine, a brief description of your use for it, how long you've had ownership, and a few photographs to info@blastrac.com. Blastrac will review submissions and contact the owner of the selected machine to make arrangements to transport the machine to Blastrac for final inspection and testing, and then on to World of Concrete in January.
Submissions must be received no later than October 15, 2010. The winning entrant will receive round-trip airfare, hotel accommodations for three nights, and attendee entrance to WOC 2011 in Las Vegas, Nevada. Be sure to watch the Blastrac website for further details and photos of some of the entries with the stories behind their success.

From The Onion-Stoner Architect Drafts All-Foyer Mansion

Ahh stoner architects, that would explain a lot of the screwed up jobs I've seen....here's a humorous piece from the Onion, those goof balls who spoof on everyone and everything...

MINNEAPOLIS–In the oft-overlooked field of stoner architecture, new talent often goes unnoticed. But that hasn't been the case for Minneapolis stoner architect Richard "Dick" Donovan, whose groundbreaking design for an all-foyer mansion is earning slack-jawed admiration from some of the most respected members of the Twin Cities stoner-architecture community.
Enlarge ImageThe blueprint for Richard Donovan's (inset) revolutionary all-foyer mansion.
Donovan had won moderate recognition for past work, including his subterranean ranch house and his roofless A-frame. The 27-year-old's latest design, however, has won him unprecedented acclaim, hailed in the August issue of Stoner Architectural Digest as "the most absolutely fucked-up shit to come along in years."
"I was sitting around, bullshitting with [longtime roommate and noted carburetor-parts lamp designer Mike] Mosedale one afternoon, trying to decide if we should hang the 1968 All-American Calendar–the hilarious one with Nixon on it–by the ping-pong table or in the foyer or what," Donovan said. "Then we got to talking about foyers, and how they're kind of weird, 'cause you don't ever actually do anything in them except, you know, use them to walk into the next room. Then, all of a sudden, I was like, 'Whoa. Imagine if, after the foyer, there was just a whole endless series of foyers.' Christ, what a mindfuck that'd be."

READ THE REST BY CLICKING HERE

Lawsuit Florida Roofing Consultant Servcor International Sues Bayer AG Subsidiary for More Than $50 Million, Alleges Drunken Executive Breached Agreements, Botched Massive Airport Contract

Found info on this lawsuit at THE URETHANE BLOG

ST. PETERSBURG, Fla., Feb 15, 2010 (BUSINESS WIRE) -- In a lawsuit that details the complexities of working with large multi-national corporations on government contracts, Florida roofing and construction industry consultant Servcor International recently sued a Bayer AG subsidiary for more than $50 million plus punitive damages. Servcor alleges that Bayer breached its partnership agreement with Servcor when it shut Servcor out of a $15 million airport roofing contract. Bayer further violated its fiduciary duties to Servcor following a significant ethical breach by a Bayer executive who leaked confidential information to a roofing contractor customer and Servcor competitor. The suit alleges that the national sales manager disclosed the information while intoxicated at a business dinner.

The 32-count complaint names Bayer MaterialScience, LLC, a manufacturer of the components and materials used in spray-on polyurethane foam (SPF) roofs. Bayer MaterialScience is a subsidiary of Bayer AG, the German conglomerate best known in the United States for aspirin and other pharmaceutical products. The suit also names Insulated Roofing Contractors, a Kentucky roofing company, and Mike Gomez Construction Consultants, Inc., a Miami general contractor. The suit alleges breach of fiduciary duty, breach of contract, negligence, fraud and deceptive and unfair trade practices by Bayer, the existence of a conspiracy involving all defendants, and counts against IRC and/or Gomez for fraud, negligence and interference both with contractual and advantageous business relationships.

"We brought a significant contract to Bayer, only to have it taken from us following the inexplicable, drunken actions of a Bayer executive," said David Looney, president of Servcor International. "The breach of duty and conspiratorial acts of the defendants harmed our company's present and future sales as well as damaged the ultimate consumer."

According to the complaint filed in Pinellas County, Fla. Circuit Court by Servcor attorney Daniel L. Moody of Tampa Bay area law firm Moody and Shea, P.A., Servcor was not only a distributor of Bayer's roofing products but also Bayer's business partner in many roofing related services while also providing business strategies to increase Bayer's market share. Servcor also built a strong relationship with the Miami-Dade Aviation Department which specified materials and services co-branded by Servcor and Bayer on a 10-acre roofing project at Miami International Airport, saving the county over $10 million. According to the complaint, the drunken disclosure of confidential information by Bayer's sales manager set off a string of events wherein Bayer conspired to intentionally cause financial harm to Servcor and to put Servcor out of business.

Servcor International provides commercial roofing and waterproofing services to both consumers and product manufacturers. More information about Servcor is available atwww.servcorintl.com or by calling (727) 894-3415. A copy of the lawsuit is available athttp://servcorintl.com/media.pdf.

SOURCE: Servcor International

http://www.marketwatch.com/story/florida-roofing-consultant-servcor-international-sues-bayer-ag-subsidiary-for-more-than-50-million-alleges-drunken-executive-breached-agreements-botched-massive-airport-contract-2010-02-15?reflink=MW_news_stmp

America's Watchdog Says Investigation Reveals Homebuilders Failed to Pay Taxes on Undocumented Workers; Local, State & Federal Governments May be Owed Over One Hundred Billion Dollars

I don't know about Coyote labor brokers, but I do know that most workers were paid by "piece rate"; meaning they got paid a set amount to install, say a bundle of shingles on the roof. If it takes him one hour to do something that normally might take 2 hours, what do you think happens to quality?  Anyway, this comes from this link.

Americas Watchdog is one of Americas premier consumer groups. For over two years it has been conducting a nationwide investigation focused on homebuilders using a "coyote labor broker scheme" to avoid the payment of local, state or federal taxes. According to Americas Watchdog, "in the last six years we are talking about millions of undocumented workers and up to a hundred billion dollars in un-paid local, state or federal taxes by their employers = national or regional homebuilders". So what is a "coyote labor broker" & how does the scheme work?

Third-party inspection firm, Calif.-based Converse Consultants, falsified 62 reports on Las Vegas construction project; is finding from Nevada State Contractor Board

A Las Vegas construction project that had third party oversight from California based Converse Consultants went awry due in part to the company falsifying reports that rebar was being installed correctly....read some of this here below;c

SOLID BEGINNING

Things started fine with the Harmon, one of six high-rise buildings at CityCenter's 67-acre campus. The 47-story mixed-use tower officially broke ground in 2006 at the northeast corner of Harmon Avenue and Las Vegas Boulevard amid fanfare and great expectations. Construction progressed and the building took shape, steadily climbing skyward. Plans called for 207 posh residences perched above a 400-room hotel, with a Mr. Chow's Restaurant and Frédéric Fekkai salon, among other amenities.

Trouble surfaced in July 2008 when it was learned that rebar -- reinforcing steel bars used in concrete -- was improperly installed on 15 floors of the building. The discovery resulted in a temporary project shutdown and construction repairs. Clark County's Building Department launched an investigation, as did the Nevada State Contractors Board.

They found that the Harmon's third-party inspection firm, Monrovia, Calif.-based Converse Consultants, falsified 62 daily reports between March and July of 2008 stating that things were OK when they weren't. County inspectors missed the problems, too. It seems rebar was misplaced inside link beams that transfer horizontal loading to the building's shear walls. A shear wall is a braced panel wall that counters lateral loads on a structure. In other words, it supports the building and keeps it from falling over.
Read the whole article here

OSHA Proposes $90,000 in fines After Brooklyn Balcony Collapse

Occupational Safety and Health Administration

NEW YORK - The U.S. Department of Labor's Occupational Safety and Health Administration has proposed a total of $90,000 in fines against four New York contractors as the result of a Dec. 15, 2009, balcony collapse at a five-story residential building under construction at 701 Union St. in Brooklyn.

Cited are steel erection contractor N&C Iron Works Inc. of Brooklyn and three Staten Island contractors, project general contractor NNF Enterprises Inc. doing business as FDM Construction, masonry subcontractor IVM General Construction Inc. and carpentry subcontractor Barbaria Construction.

An employee of N&C Iron Works fell 20 feet when the second floor balcony he was standing on collapsed as he was attempting to jack up the third floor balcony. OSHA's inspection found that the second floor balcony was overloaded, improperly constructed and incapable of supporting its weight load. The scaffold on which employees were performing steel erection work was improperly constructed and employees lacked fall protection.

"These employers failed to ensure that all necessary safeguards were in place and in use, thus exposing workers at this jobsite to potentially deadly fall and crushing hazards," said Kay Gee, OSHA's area director for Brooklyn, Manhattan and Queens. "While it is fortunate that no one was killed in this incident, worksite safety and workers' lives cannot and must never be dependent on chance or luck."

As a result of its investigation, OSHA has fined NNF Enterprises $46,250 for failing to brace or support the balcony, unsecured scaffold decking, no regular worksite safety inspections, debris in an access stairway and missing railings. N&C Iron Works Inc. has been fined $29,250 for lack of fall protection, not training employees on fall and scaffold hazards, overloading and not ensuring the stability of the balcony, stairway debris and missing railings. IVM General Construction Inc. has been fined $13,000 for the overloaded balcony, the inadequately constructed and planked scaffold, lack of fall protection, stairway debris and missing railings. Barbaria Construction has been fined $1,500 for unsecured scaffold decking.
1 2 next

From Sacramento Business Journal-Law firm sued over local construction defect case Plaintiffs say they were kept in the dark about settlement proceedings

A Southern California law firm that has won more than $17 million from construction defect court settlements in the Sacramento area is being sued by former clients for legal malpractice.

Eleven local parties allege Lee Jackson, a partner in the Santa Monica office of Milstein, Adelman & Kreger LLP, misled them and settled a construction defect lawsuit against U.S. Home Corp. for less than 10 percent of the estimated cost of repairs.

The lawsuit, filed June 18 in Sacramento County Superior Court, alleges negligence, breach of contract, breach of fiduciary duty and fraud on the part of the Milstein firm. The suit demands damages of $1.5 million plus interest, punitive damages, fees and court costs.

“These people don’t feel they got adequate representation,” said Eugene Haydu, a Sacramento attorney who represents the plaintiffs. “We (attorneys) have a special duty to homeowners. Most of this is brand new to them and they can be taken advantage of — that’s what I think is most egregious.”

Read more: Law firm sued over local construction defect case - Sacramento Business Journal

Help Wanted- SALES REPRESENTATIVE - Liquid Roofing/Waterproofing at Sika Corporation

FROM A LISTING AT LINKED IN


SALES REPRESENTATIVE - Liquid Roofing/Waterproofing at Sika Corporation

Location: Chicago, IL (Greater Chicago Area)

URL: http://www.sika-corp.com

Type:
Full-time
Experience:
Mid-Senior level
Functions:
Sales
Industries:
Building Materials
Posted:
July 8, 2010 by Karen Glennon
Employer Job ID:
SC-SalesLAM-LI

Job Description

We are currently seeking a SALES REPRESENTATIVE for the Chicago Area in our Liquid Plastics / Construction Products Business Unit. The position will be responsible to develop a need for Sika liquid roofing / waterproofing products through service and specifications to distributors, contractors, architects and specifiers.

The responsibilities include:
• achieve a sales budget within an assigned discount or profit target
• ensure complete geographical coverage of your assigned territory through an effective and efficient account base management system
• promote products through continued development of engineering specifications and contractor applications
• maintain a high level of understanding with current product offerings and market applications
• identify and follow up on new market opportunities
• provide weekly and monthly sales activity reports
• technical specification writing
• follow company environmental and safety policies
• other projects as assigned by manager

Sika Corp offers a competitive compensation and benefits package including medical/dental/vision/life/disability insurance, flexible spending accounts, 401(k) plan, and educational assistance.

If interested in this opportunity, please send your resume with salary requirements to:


resume@sika-corp.com
Sika Corporation, 201 Polito Avenue
Lyndhurst, NJ 07071
www.sika-corp.com

EEO Employer M/F/V/H

Skills

The ideal candidate will need to have the following qualifications:
• an Associates or Bachelors degree
• 5+ years of proven sales experience, preferably in construction or roofing
• excellent communication and presentation skills
• strong time management and organizational skills
• valid driver's license and ability to travel
• computer literate
Company Description

Sika Corporation, based in Lyndhurst, NJ, is a leading supplier of specialty chemical products and industrial materials serving construction and industrial markets including transportation, marine, and automotive. Its technologies are focused on sealing, bonding, damping, reinforcing and protecting. We are committed to customer satisfaction, innovation, and teamwork. Sika Corporation employs more than 900 people in 7 manufacturing, 2 R&D facilities, and sales and marketing offices throughout the country.

Job ID: 1024272

Apply Now
Search More Jobs

Deck Collapses-July 4th partiers fall 3 stories in Ala.; 1 dead

DECK SAFETY PLEASE!


A wooden deck crumpled under a group of Fourth of July partiers in Alabama, killing one person and injuring six others.

Seven partygoers plummeted three stories when the deck at an apartment complex in the Birmingham suburb of Hoover collapsed Sunday night. Two uninhabited decks below were crushed by the falling debris.

Hoover Fire Department spokesman Rusty Lowe said one person was pronounced dead at the hospital, another is in critical and three are hospitalized with serious injuries. Two were treated for minor injuries and released.

Read more: http://www.sanluisobispo.com/2010/07/05/1204882/july-4th-partiers-fall-3-stories.html#ixzz0tCGsX8QE

California Court of Appeal Clarifies Definition of "Retention"

Yassin v. Solis, 184 Cal. App. 4th 524 (Cal. Ct. App. 2010)

By: Carlo L. Rodes and Brett D. Bissett, K&L Gates, Los Angeles

In this case, the court of appeal set forth a definition for retention that applies whenever a contractor seeks an award of penalties for improperly withheld retention under a California prompt payment statute.

The plaintiff-contractor, Diaa Yassin was hired by the defendants-owners, (collectively “Solises”), to improve the Solises’ home. Under the contract, Yassin was to receive a series of payments throughout various stages of construction and the last payment was to be made upon completion of the work and before occupancy. Yassin ultimately sued the Solises for money allegedly owed under the contract. Although the court addressed other matters, a principal issue was the status of the final two payments of $15,000 and whether those amounts qualified as retention payments under California Civil Code § 3260. Under section 3260, if an owner fails to make retention payments within the time prescribed by that section, a contractor may recover a penalty in the amount of 2 percent per month on the improperly withheld amount plus attorney fees.

The trial court awarded the Solises $50,000 in damages and $36,205.14 in attorney fees pursuant to section 3260(g). The trial court reasoned that because the final payment was not due until the certificate of occupancy was issued, the final payment was retention because the amount was withheld until the work was completed and approved.

On appeal, the court overruled the Solises’ fee award on the ground that the last payment did not constitute a retention and, thus, Civil Code Section 3260(g) was inapplicable. The court interpreted a retention to be funds withheld from payment, and not the payment itself. Specifically, the court held that a retention has to be an amount that, by contract, has been retained from an amount owing for work already done, but not presently paid, rather than an unpaid sum or last payment due upon completion. According to the court, the contract at issue did not include retention terms, which are generally a percentage of each progress payment.

The court noted the prior case of Murray’s Iron Works, Inc. v. Boyce, which held that a down payment and final payment are not progress payments under section 3260.1. Murray’s, 71 Cal. Rptr. 3d 317, 330-31 (Cal. Ct. App. 2008). The Yassin court explained, however, that this does not mean that “a final payment due at the conclusion of performance under an installment contract is a retention. It is simply the last installment.” Yassin, 184 Cal. App. 4th at 537.

The Yassin court concluded that section “3260.1 imposes a penalty for the wrongful withholding of a progress payment, [and] it makes sense that § 3260 imposes a penalty on the wrongful withholding of amounts retained from progress payments—i.e. the retention. The remedy [here] for the failure to pay a last installment payment upon completion of services is simply damages for a breach of contract.” Id. The court, consequently, held that the Solises were not entitled to attorney fees under section 3260(g) for improperly withheld retention.

Call For Entries-Concrete Construction

Concrete Construction DOY 2010 Call for Entries

	TO ENTER Entry forms are available at concreteconstruction.net. DEADLINE August 27, 2010 QUESTIONS Ask Colette Palait cpalait@hanleywood.com 773.824.2506 PRODUCED BY			2010 CALL FOR ENTRIES Enter CONCRETE CONSTRUCTION's 6th Decorative Concrete Project of the Year Contest. A look at the best projects, design and techniques of commercial decorative concrete. WHY ENTER? Get great exposure for your company. Winners will be featured this fall in a special section of CONCRETE CONSTRUCTION and all entries on concreteconstruction.net. ENTRY ELIGIBILITY Concrete contractors, general contractors, architects, decorative concrete specialists and other professionals may enter commercial and public projects completed prior to July 1, 2010. MATERIALS Send a high-res image and fill out the form found online at concreteconstruction.net.

Decorative Concrete Council Seeks Entries for Concrete Projects

Win Best of Show!

The Decorative Concrete Council, a specialty council of the American Society of Concrete Contractors, is seeking entries for its 2011 awards program, which recognizes outstanding decorative concrete projects in 11 different categories, with one project taking home the coveted Best of Show honor. Download this PDF for complete contest rules.

Quest Building Products Has a Big Sale Going...

I got their flyer in the mail, they have Mapei products, Platinum Epoxy products and Sika at 50% off. Restrictions apply. See their new website at www.questbuilding.com today!

Tell them ya saw it here!

APRA's Newsletter is Up

From our friends at APRA

Association of Professional Reserve Analysts (APRA) is the national trade association for those that carry the prestigious Professional Reserve Analyst (PRA) credential.   APRA provides a common base of knowledge, standards of care and professionalism.  Membership is open to reserve study providers and those that provide related services.   For membership information and the latest APRA Advisor, go to www.apra-usa.com
IN THIS EDITION
Slow Economy Planning.  Prioritizing renovation events.
Budgeting Tips.  Get ahead of the budget season.
Contractor or Employee?  Be sure you hire who you think you’re hiring.

ADVERTISERS
APRA Advisor is distributed to over 10,000 HOA board members and managers throughout the country.  For advertiser information, email APRA@teamwi.com
Richard Thompson  PRA™
President - Association of Professional Reserve Advisors

The Regenesis Report (National Edition) July 2010 is now available

From our friends at Regenesis.net
 

The Regenesis Report (National Edition) July 2010 is now available for viewing at www.Regenesis.net

IN THIS EDITION

Managing Solo. Is your HOA cut out to go it alone?
Ask the HOA Expert™.  Another set of intriguing Q&As.
How to Deal with a Crazy Board.  Tips for getting your point across.
Committee Charters.  Every committee needs marching orders.
Collection Policy Scorecard.  Does your Policy have what it takes to bring home the bacon?
Pool Considerations.  Tune up your pool operation.
The Coach Speaks.  Never mistake activity for achievement.
Bob’s Rules of Disorder.  How to bring your meetings to a grinding halt.

ADVERTISERS  The Regenesis Report reaches over 10,000 homeowner association boards and managers nationwide each month.
For advertiser information, see www.regenesis.net/advertise.htm

SELF MANAGED HOA? Regenesis.net is specifically designed to assist self managed HOAs with management issues. 
Besides the personalized Ask the HOA Expert™ service, there is a vast number of self-help resources. 
All for only $99/year.  For details, see www.Regenesis.net/SubscriberInformation.htm

 

Why not share The Regenesis Report with someone you love?

Richard L. Thompson
The HOA Expert™
www.Regenesis.net