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Wednesday
Feb122014

DiNicola Named 2014 BTI Client Service All-Star

DiNicola, Seligson & Upton, LLP is proud to announce that Jack DiNicola has been named a BTI Client Service All-Star for 2014 by The BTI Consulting Group, Wellesley, Massachusetts.  The 2014 BTI Client Service All-Stars consist of 330 attorneys nationwide from 187 law firms that were selected for outstanding client service through unprompted feedback from general counsel at the world's largest companies.  Mr. DiNicola, whose practice is focused on construction law, was nominated as a 2014 BTI Client Service All-Star by a national construction and real estate company. 

For more information about BTI Consulting and the Client Service All-Stars, please go to www.bticonsulting.com and http://www.bticlientserviceallstars.com/attorneys-the-bti-all-stars/

Thursday
Mar282013

DSU Hires New Associate Michael Brangwynne

DSU is pleased to announce that Michael Brangwynne, Esquire has joined the firm as an associate.  Mr. Brangwynne graduated in the top 10% of his class at Suffolk University Law School in 2011 and was a member of Suffolk's National Trial Team.  Mr. Brangwynne will concentrate his practice in commercial litigation, construction litigation, zoning disputes, and administrative law.

Tuesday
Feb122013

DSU Congratulates Its Clients On Making The BBJ's List Of The Top 25 Largest General Contractors In Massachusetts

The Boston Business Journal recently published its annual Book of Lists, including a list of the 25 largest general contractors in Massachusetts.  DSU represents 5 of the top 17 largest general contractors on the list.  We congratulate Suffolk Construction Co., Inc., Gilbane Building Company, Lee Kennedy Co., Inc., Commodore Builders, and Lend Lease on this accomplishment.

Tuesday
Dec182012

Owner Waives Claim For Liquidated Damages By Failing To Follow Claim Procedure In AIA A201

A recent case issued by the Court of Appeals of Tennessee should give comfort to general contractors and pause to owners.  In RCR Building Corp. v. Pinnacle Hospitality Partners, 2012 WL 5830587 (Tenn. Ct. App. November 15, 2012), the Court held that the owner waived its claim against the general contractor for liquidated damages because it did not submit the claim in accordance with the procedures set forth in the contract.  The parties executed the AIA A111 Contract Agreement, which incorporated the AIA A201 General Conditions.  The owner asserted liquidated damages against the general contractor for delays.  The general contractor argued in a Motion for Partial Summary Judgment that the owner had failed to submit its claim for liquidated damages in accordance with the procedures set forth in the contract and, therefore, waived the claim.  The trial court rejected the general contractor’s argument.

On appeal, the Court of Appeals held that:  (1) pursuant to paragraph 4.3 of the A201, the owner’s claim for liquidated damages was, in fact, a claim as defined therein; and (2) the trial court should have allowed the general contractor’s motion because the owner failed to submit the claim in accordance with the contract.  The Court of Appeals rejected several arguments of the owner, including that a claim for liquidated damages is not a claim as defined by the A201 and that an owner’s claim for liquidated damages was self-executing.  In essence, the Court of Appeals held that the dispute resolution procedures in the contract were applicable to both contracting parties.

This can be a particularly useful case for general contractors in two distinct scenarios.  First, the obvious use is to defeat, potentially, an owner’s claim for liquidated damages for failure to comply with the contract’s notice provisions.  This case can also be used to defend an owner’s assertion of virtually any backcharge if the owner failed to comply with the notice provision.  Second, and less obvious, this case can help the contractor in negotiating the terms of its contracts with owners.  Often, owners will try to modify the A201 notice provisions and other provisions addressing claims by expressly limiting the applicability of those provisions to the general contractor’s claims only.  With this case, general contractors can now point to an appellate court decision that supports the clear and unambiguous language of the A201 in negotiating the terms of the claims provisions of the contract.

Please contact Jack DiNicola for additional information.

Thursday
Apr192012

Massachusetts Mechanic's Lien Law "Cram Down" Provision Enforced - With A Twist

The Massachusetts Mechanic's Lien Law ("Lien Law") contains a mechanism intended to limit owners' and general contractors' exposure to liens.  See M.G.L. c. 254, sec. 4.  In essence, the amount of a subcontractor's or sub-subcontractor's lien is limited to the amount due or to become due the contractor or subcontractor that is in contractual privity with the lien claimant at the time the lien claimant's notice of contract is recorded.  Therefore, if a general contractor owes a subcontractor $100,000 (i.e., the amount due or to become due), and a sub-subcontractor of that subcontractor records a notice of contract asserting that it is owed $150,000, the amount of that lien is capped at $100,000 -- the amount due or to become due.  There are exceptions, however, if a lower tier subcontractor serves a notice of identification.

This provision has been enforced by Massachusetts courts for years.  The cram down provision is most often used in termination cases, where a subcontractor records a notice of contract after the general contractor is terminated.  In fact, the seminal case on this issue involved a terminated general contractor.  Usually, the analysis focuses on when the actual termination occurred versus when the notice of contract was recorded.  In a case issued by the Massachusetts Appeals Court on April 12, 2012, however, the notice of contract was recorded before the termination of the contractor.  See Superior Mech. Plmg. & Heating, Inc. v. Insurance Co. of the West, 2012 WL 1193887.  The Superior Mechanical Court did not focus on the date of the formal termination notice, but rather focused on the terms of the contract for default and payment, and the dates upon which those provisions controlled the relationship between the owner and the general contractor.  The Court determined that, despite the date of the formal notice of termination, at the time the subcontractor's notice of contract was recorded, pursuant to the terms of the general contract, there was no money due or to become due the general contractor.  The Appeal Court reversed a summary judgment decision in favor of the subcontractor and actually instructed the Superior Court, upon remand, to dismiss the subcontractor's mechanic's lien claim under the cram down provision.

The importance of this decision is that now courts must focus on the language of the governing contracts and the facts associated with default and payment, instead of simply focusing on the date of a termination notice.

Please contact Jack DiNicola for additional information