July 2007

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July 2007
Volume 10, Issue 2

(Get a printer-friendly version)

Buckingham, Doolittle & Burroughs’

Real Estate & Construction Practice Group presents Build On This

In this edition of Build On This, we provide brief summaries of significant court cases and legal developments affecting real estate and construction, and two feature articles. David Kern and Andrew Bernat (Akron) discuss the construction industry's use of the completed contract method in the first article. In the second article, Tod Morrow (Canton) summarizes an important new decision from the Occupation Safety and Health Review Commission that will particularly benefit employers in the construction industry. For current information on Real Estate & Construction Law please visit our web blog, buildonthis.com. As always, we welcome your opinions and feedback. Thank you.

Case Summaries

To preview the Case Summaries, click Here: CASE SUMMARIES

REAL ESTATE CASES

IndyMac Bank, FSB v. Bridges (10^th Dist. 2006), 169 Ohio App. 3d 389.

Equitable subrogation does not apply to benefit party that failed to discover mortgage interest.

Evanich v. Bridge, 9^th Dist. No. 05 CA 008824, 2007 Ohio 1349.

Intent to claim title not required to establish adverse possession.

Regency Plaza, LLC v. Morantz, 2007 Ohio 2594 (Ohio Ct. App. 2007)

The tenant sought a declaratory judgment that the lessor could not terminate her tenancy if she complied with two settlement agreements. The trial court granted the tenant's summary judgment motion, and the lessor appealed.

Brunswick Ltd. P'ship v. Feudo, 2007 Ohio 2163 (Ohio Ct. App. 2007)

Appellant lessees sought review of the judgment of the Lake County Common Pleas Court (Ohio), which awarded judgment to appellee lessor for holdover rentals and other expenses as compensatory damages along with attorney fees as the result of the lessees' failure to vacate the leased premises upon the conclusion of the lease.

JP Morgan Chase Bank, NA v. Qualls, 170 Ohio App. 3d 128 (Ohio Ct. App. 2007)

The Stark County Court of Common Pleas (Ohio) granted the bank's motion for summary judgment and entered a decree in foreclosure and reformation. The parents appealed.

CONSTRUCTION CASES

Rockett v. Newark Builders Supply, Inc. (5^th Dist. 2006), 169 Ohio App. 3d 379.

Removal of the scaffolding and the installation of guardrail not “active participation” under Cafferkey.

Am. R.R. Constr. v. Columbiana County Port Auth., 7^th Dist. No. 06 CO 14, 2007, 2007 Ohio 1568.

No unjust enrichment where property owner entitled to maintenance pursuant to lease agreement.

Ohio Energy Assets, Inc. v. Grange Ins., 2007 Ohio 2732 (Ohio Ct. App. 2007)

Appellants, an oil and gas producer and its parent company, sued appellees, a landowner, a contractor, and an insurer, in the Franklin County Court of Common Pleas (Ohio) for negligence.

FEATURE ARTICLES

LOT DEVELOPERS USING COMPLETED CONTRACT METHOD SHOULD EXERCISE CAUTION

By: David Kern and Andrew W. Bernat

The IRS’s Large and Mid-Size Business Division (“LMSB”) has issued a directive to its agents warning that there is a growing trend in the construction industry resulting in the improper use of the completed contract method (“CCM”). Generally, a long-term contract for the manufacture, building, installation or construction of property must be reported under the percentage-of-completion method (“PCM”). However, home construction contracts, and other real property construction contracts that satisfy a two-year test and a $10,000,000 gross receipts test, are not required to use the PCM and instead can use the CCM. Under the CCM, notwithstanding the timing of payment receipt, the taxpayer doesn’t report income until the contract is completed.

To continue reading this article, click here FULL STORY.

OSHA's Multiemployer Worksite Policy Declared Invalid

By: Tod T. Morrow

The Occupational Safety and Health Review Commission (OSHRC) recently issued a decision that prevents the Occupational Safety and Health Administration (OSHA) from citing general contractors for the safety violations of subcontractors at construction sites. In a major victory for general contractors, two of the three OSHRC Commissioners held that OSHA’s Multiemployer Worksite Policy is invalid as applied to general contractors that have neither created nor exposed employees to a safety hazard.

To continue reading this article, click here FULL STORY.

KUDOS__________________________________________

Joseph L. Ackerman, Jr. (West Palm Beach) is listed in the 2007 edition of Florida Super Lawyers®. He has been recognized as a Florida Super Lawyer in his areas of practice, Complex Business and Construction Litigation.

Mark F. Craig (Cleveland) has been recognized as a rising star in his area of practice, Construction Litigation. He is listed in the 2007 edition of Ohio Super Lawyers Rising Stars®.

Christopher M. Ernst (Cleveland) will be writing a monthly column on legal issues for Concrete Today, a national publication in the concrete industry. Mr. Ernst also published an article for Builders Exchange Magazine entitled, "My Lawyer Can Beat Up Your Lawyer."

Donald B. Leach, Jr. (Columbus) and Henry I. Reder (Cleveland) were named as Leading Construction Law Attorney’s in the 2007 edition of Chambers USA.

David J. Lindner (Cleveland) has been recognized as a rising star in his areas of practice, Real Estate Transactions and Real Estate Litigation. He is listed in the 2007 edition of Ohio Super Lawyers Rising Stars®.

Michael D. Mopsick (Boca Raton) is listed in the 2007 edition of Florida Super Lawyers®. He has been recognized as a Florida Super Lawyer in his areas of practice, Business Litigation, Probate & Trust Litigation, Construction Litigation.

Robert E. Pershes (Boca Raton) is listed in the 2007 edition of Florida Super Lawyers®. He has been recognized as a Florida Super Lawyer in his areas of practice, Intellectual Property, Intellectual Property Litigation, Construction Litigation.

SPEAKING OUT __________________________________

Presentations recently given…

Date

Title

Presenting Attorney

Sponsored By:

April, 2007 Faith Is What Makes the Impossible, Possible: 12 Steps to Lead with Character Nicholas T. George Heart-to-Heart Communications

June, 2007

Ohio Mechanics' Lien Law: The Hows and Whys of the Paperwork (General Contractors, Owners, Architects, and Lenders)

Donald B. Leach, Jr.

The Builders Exchange of Central Ohio

June, 2007 Implementing Strategies to Minimize the Risk of Mechanics' Liens and 'Paying Twice'
Donald B. Leach, Jr.

Mark F. Craig
OSBA CLE Institute

June, 2007 Implementing Strategies to Minimize the Risk of Mechanics' Liens and 'Paying Twice'
John P. Slagter

Mark F. Craig

Summit & Portage County Home Builders Association

June, 2007

What to Do When Construction Projects Go Bad in Ohio

Mark F. Craig

Robert A. Hager
Frederick M. Lombardi
Martin J. Pangrace
John C. Ross

Lorman Education Services

June, 2007

Critical Documentation for Proving Liability and Damages

Robert A. Hager

Martin J. Pangrace

Associated Builders and Contractors, Inc. of Northern Ohio

June, 2007 Modern Mechanics' Lien Martin J. Pangrace OSBA seminar

June, 2007

Litigation of Liens - Litigation and Enforcement of Mechanics’ Lien Claims

Robert A. Hager

OSBA seminar

Save the date for these upcoming presentations…

Date

Title

Presenting Attorney

Sponsored By:

July 26

Columbus, Ohio

Resolving Problems and Disputes on Construction Projects

Michael V. Passella

National Business Institute

Click here to register

August 1

Hilton Inn West, Akron, Ohio

Partnerships, LLCs and LLPs: Organization and Operation in Ohio Andrew W. Bernat
Steve A. Dimengo
Christopher M. Ernst
Robert W. Malone Lorman Education Services
Click here to register

September 5

Ohio

I Paid the Architect! Don’t I Own the Drawings? Henry I. Reder
Akron Bar Association Real Property/ Environmental Law Committee

·

If you are interested in obtaining information on upcoming seminars or would be interested in having speakers from Buckingham, Doolittle & Burroughs, LLP make a presentation to your organization, please contact: Lorna J. Henderson, Client Relations Administrator at lhenderson@bdblaw.com or 800.686.2825 ext. 86473.

www.bdblaw.com
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Real Estate & Construction Web Blog http://buildonthis.com/

ENJOY READING THE BUILD ON THIS?

BDB also publishes Advisor, a general law newsletter, Business Compass, a Business Law newsletter, BDB Health & Medicine Reporter, a newsletter geared towards the healthcare industry, Trusts & Estates Bulletin, a newsletter geared towards all individuals, Workfor$e, an Employment & Workers' Compensation newsletter, and several Special Alert publications that cover changes in laws that may affect our clients.

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Build On This contains articles delivered as a free service from the Law Firm of Buckingham, Doolittle & Burroughs, LLP (BDB) to make clients and friends aware of legislative changes and laws affecting their businesses and personal lives. If you enjoy reading Build On This, please tell a friend or colleague. The Build On This is sent only to subscribers who have requested it. Anyone can sign up for a free subscription or view prior Build On This by visiting our web site at http://www.bdblaw.com/newpublications.asp.

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In some jurisdictions, this newsletter may be considered advertising. The hiring of a lawyer is an important decision that should not be based solely upon written information about our qualifications and experience. Before you decide, ask us to send you free written information about our qualifications and experience. Buckingham, Doolittle & Burroughs, LLP has endeavored to comply with all known legal and ethical requirements in compiling this newsletter. Buckingham, Doolittle & Burroughs, LLP does not desire to represent clients based on their review of any portions of this newsletter that do not comply with legal or ethical requirements.

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