Attorney Russell O'Rourke's Legal Cases

Construction and development

Acoustic Ceiling & Partition v. Continental Building Systems

Jan 14, 2013

OUTCOME: Case was settled prior to a Court of Appeals decision

We are amicus counsel for the American Subcontractors Association and ASA of Ohio. The trial court interpreted the "pay-if-paid" clause as being too vague to be enforceable, therefore read it as a ... "pay-WHEN-paid" clause. A Pay-IF-Paid clause makes payment to the contractor a condition precedent to the contractor's obligation to pay its subcontractor. A Pay-WHEN-Paid clause eliminated the condition precedent concept and reads it as a "timing only" provision and that if the contractor is not paid within a reasonable period of time, the contractor still has to pay the subcontractor. We are urging the Court of Appeals to affirm the trial court's opinion.

Construction and development

J&H Reinforcing & Structural Erectors, Inc., v. OSFC

Sep 28, 2012

OUTCOME: Pending in the Franklin County Court of Appeals

We are Amicus Counsel for the American Subcontractors Association and ASA of Ohio. J&H was delayed in its performance. The State prescribed contract forms require a contractor asking for an extensi ... on of time to supply a significant amount of information, including information which may not be available to it, particularly if it is not the cause of the delay. The trial court found in favor of J&H. The OSFC appealed arguing that strict compliance with the contract documents was appropriate.

Construction and development

KeyBank, NA v. Columbus Campus, LLC,

Mar 13, 2012

OUTCOME: Pending in the Franklin County Court of Appeals

We are Amicus Counsel for the American Subcontractors Association and ASA of Ohio. The lender required the owner to place a contractual provision in its contract with the prime contractor that waive ... d mechanic's lien rights and required the contractor to place similar language in its subcontracts, waiving mechanic's lien rights and requiring subcontractors to place similar language in their subcontracts, etc. The contractor did not place the language in the subcontracts. No subcontractor or material supplier directly waived its mechanic's lien rights via contract. The lender successfully argued to the trial court that the flowdown clause carries with it ancillary contract clauses such as mechanic's lien waivers. The lender was a construction lender and had the possibility of properly documenting its construction loan, but failed to do so and is now trying to enforce a principle that a contractor can waive mechanic's lien rights for all subcontractors and suppliers, however distant, by flowdown clause alone.

Construction and development

Mid-Ohio Mechanical, Inc., v. Carden Metal Fabricators, Inc.

Feb 28, 2007

OUTCOME: Successful: The Court of Appeals found in favor of the Lien Claimant.

We were Amicus Counsel for the American Subcontractors Association and ASA of Ohio. Mid-Ohio Mechanical installed a manufacturing line for the purposes of painting automotive bumpers. When they wer ... e not paid they filed a mechanic's lien. The contractor defended arguing that the installation of a manufacturing line was not an "improvement to real property" as required by the Ohio Mechanic's Lien Statute for the purposes of allowing a mechanic's lien to attach. This case traveled to the Court of Appeals twice from the trial court and to the Ohio Supreme Court. After the trial court initially granted the contractor’s motion for summary judgment against the lien claimant, the court of appeals ruled in favor of the lien claimant, ordering the case to trial. After the trial, the trial court found in favor of the lien claimant, which was again appealed. The trial court’s second ruling, in favor of the lien claimant was affirmed.

Construction and development

Dugan & Meyers Construction Co. v. Ohio Department of Administrative Services

Jan 01, 2007

OUTCOME: The Ohio Supreme Court upheld the Court of Appeals decision de

We were Amicus Council for the American Subcontractors Association and ASA of Ohio. Dugan & Myers was delayed on the job from admittedly deficient plans and specifications. The trial court awarde ... d damages to D&M and denies back charges to the ODAS for replacing D&M. The Franklin County Court of Appeals reversed, holding that the Spearin Doctrine should not be "extended" to cases like this.

Russell O'Rourke's Legal Cases (5)

Acoustic Ceiling & Partition v. Continental Building Systems

J&H Reinforcing & Structural Erectors, Inc., v. OSFC

KeyBank, NA v. Columbus Campus, LLC,

Mid-Ohio Mechanical, Inc., v. Carden Metal Fabricators, Inc.

Dugan & Meyers Construction Co. v. Ohio Department of Administrative Services