Michael Fortney
Mike Fortney helps his clients with construction law, business and employment law representation. He has maintained his AV rating by Martindale-Hubbell since 1994, signifying that his "legal abilities are of the very highest standard and that his professional ethics and conduct are above question." [Email]
Before law school, Mike worked as a chemist, served as the president of a local union, and worked as a carpenter for a general contractor. During law school, Mike received a number of awards and honors, including the Federal Bar Association award for the outstanding law school student in the Sixth Federal Appellate District, and an appointment to the Law Review.
Mike graduated from the Cleveland-Marshall College of Law in 1985, summa cum laude. After working for the Law Reform Division of the Legal Aid Society during law school, Mike practiced with Squire, Sanders & Dempsey, one of Cleveland's and the nation's largest firms, from 1985 until 1988. After leaving, SS&D, Mike practiced with Millisor & Nobil until forming Fortney & Klingshirn in 1993.
Mike maintains areas of expertise in construction law, employment and labor law, litigation, business disputes and ADR. He has successfully litigated and served as an arbitrator and mediator in cases involving construction disputes, commercial business disputes, and employment disputes.
Mike's representation in the construction industry includes assisting owners, general contractors and subcontractors and serving as a neutral in disputes involving competitive bidding, contract formation, unforseen and differing site conditions, scope of work disputes, changed or extra work disputes, quality of work issues, timeliness of completion, delay, acceleration, liquidated damage claims, completion of work, mechanic’s lien claims, and non-payment issues.
Mike's commercial and business experience includes representations of parties or service as a neutral in disputes involving property issues, employment disputes, business sales and services, business ownership, and business formation and operation.
Mike has represented employers and employees and served as a neutral in employment disputes alleging age discrimination, race discrimination, sex harassment, disability discrimination, cases brought under state civil rights statutes, Title VII of the Civil Rights Act, the ADEA, the ADA, the NLRA, cases alleging wrongful discharge, cases seeking the enforcement of non-competition agreements, small business ownership issues, and disputes between shareholders in closely held corporations.
When he is not practicing law, Mike and his family operate a tree farm from his home in Medina County. Mike enjoys bicycle touring, hiking and skiing, and is currently looking forward to his next adventure.
Articles by Michael Fortney
Equal Employment Opportunity Commission
The U.S. Equal Employment Opportunity Commission (EEOC) is an independent federal agency that enforces laws against workplace discrimination. The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, ...
Ohio's Fairness in Contracting Law
The Fairness in Contracting Act governs the use of the following contract provisions in construction contracts, for both public and private contracts. No damage for delay clause. The Fairness in Contracting Act prohibits no damages for delay clauses, when...
Prompt Payment Act Damages
The prompt payment law requires contractors to pay lower tier subcontractors or suppliers that portion of the payment to the contractor that represents the work done by the contractor or the supplies provided by the supplier, minus retainage, within ten d...
Arbitration of Employment Disputes
Arbitration is a voluntary process, requiring an agreement between the parties to the dispute. The agreement to arbitrate may be entered into at the time of the dispute, or before the dispute arises. Arbitration involves the presentation of a dispute to o...
Child Labor Law restrictions on Construction Sites
Fair Labor Standards Act ("FLSA") regulates the employment of children under 18 years of age in certain types of employment. Generally, children aged 15 and under may not be employed in a number of occupations, including construction. 29 CFR §§ 570.33 ,...
Writing Effective Employee Handbooks
Employee handbooks provide important guidance to employees about benefits, vacations, holidays, work rules and the laws of your workplace. Some courts have found that statements in employee handbooks created contracts, however. In order to provide your em...
Equal Pay Act requires Equal Pay for Equal Work
The Equal Pay Act specifically targets gender based pay differences. The Equal Pay Act prohibits unequal pay for substantially equal work. An employer therefore cannot pay male and female employees differently for doing substantially equal work. To prove ...
Claims on Performance and Payment Bonds in Ohio
Public Improvements Prime contractors on a public improvement project must furnish a payment bond to the public authority, and thereby agree “to pay all lawful claims of subcontractors, materialmen, and laborers for labor performed or material furnished...
Types of Construction Contracts
The purpose of the construction contract is to (1) allocate the duties between the parties, (2) recognize and allocate the risk to the different parties, and (3) reduce the uncertainty surrounding the project and allow the parties to plan for the project ...
Presenting payment claims on Federal projects in Ohio (The Miller Act)
Presenting payment claims on Federal projects in Ohio (The Miller Act). What remedy does a subcontractor or supplier have for payment on a federal project in Ohio? Federally owned property and projects cannot be the subject of a mechanic's lien. However, ...
Components of a Written Negotiated Construction Contract
Negotiated contracts Negotiated contracts are used in the private sector. Negotiated contracts are not used in the public sector where contracts must be competitively bid. Contract documents In most contracts, the contract documents are "incorporated...
Pay-when-Paid and Pay-if-Paid Contract Provisions
One of the greatest concerns and risks on a construction project is payment by the owner. Once the contract work has been fully performed, everyone wants to be, and should be, fully paid. One of the risks of nonpayment is the owner's potential inabili...
Schedule and Delay Clauses in Construction Contracts
The schedule for completion of the contract work is an essential component of the contract, and a frequent focus of construction litigation. In a perfect world, the contract will incorporate a detailed computer generated completion schedule, with mileston...
Indemnification Clauses in Construction Contracts
Clauses in construction contracts where the promisor indemnifies "against liability for damages arising out of bodily injury to persons or damage to property . . caused by the negligence of the promisee" are against public policy and void. Ohio Revised Co...
Enforcing an agreement to arbitrate
One party to the arbitration agreement may initiate a court action over an arbitrable dispute. The other party to the arbitration agreement must then either: (1) agree to the court's authority to rule on the controversy; or (2) assert the party's right to...
Enforcing an agreement to arbitrate
One party to the arbitration agreement may initiate a court action over an arbitrable dispute. The other party to the arbitration agreement must then either: (1) agree to the court's authority to rule on the controversy; or (2) assert the party's right to...
Ohio Mechanic's Liens
Our Ohio mechanic's lien practice assists contractors and builders, subcontractors, suppliers, and owners in pursuing and defending mechanic's lien claims in all types of commercial construction disputes. Ohio's mechanic's lien law provide...
Preserving and perfecting Ohio mechanic's lien claims
The Ohio legislature has adopted a mechanics’ lien law that provides for notice, first by owners to any potential lien claimants (Notice of Commencement), and then by all potential lien claimants to owners (Notice of Furnishing). In the event that a...
Demand to File Suit Under Ohio's Mechanic's Lien Law
Demand to file suit. The owner, mortgagee, any other person with an interest in real property upon which a lien has been taken, and any contractor who has provided a bond may notify the lienholder to commence suit on the lien by giving written notice to t...
Foreclosing an Ohio Mechanic's Lien
Where and when to file an action for foreclosure The foreclosure action must be filed in the county where the property subject to the lien is located. R.C. 4113.62(D)(2). The action must be filed within six years of the date of the filing of the lien. R.C...
Michael L. Fortney, Arbitrator and Mediator
Ar bit r a to r and mediator in employment, commercial and construction disputes Michael L. Fortney is the founding partner of Fortney & Klingshirn, an AV rated law firm concentrating in construction law, ADR and employment law. Mike has been AV rated...
Union Salting Objectives
A union salting campaign is designed to intimidate or cripple a nonunion contractor. Union salts want a contractor to sign a union contract. If the contractor refuses, union salting is designed to force the contractor to spend money and waste time defendi...
Articles Index - Ohio Mechanic's Liens
Ohio Mechanic's Lien Article Index Enforcing "No-Lien" Contract Clauses Preserving and Perfecting Ohio Mechanic's Lien Claims Requirements of a Notice of Commencement Requirements of a Notice of Furnishing Requirements of a Lien Affidavit Requirements of ...
Union salting: Winning a Union Salting Campaign
Union salting campaign can intimidate or cripple a nonunion contractor. Union salts want to intimidate a contractor into signing a union contract. If the contractor refuses, union salting is designed to force the contractor to spend money and waste time d...
Union salting: Combating a union salting campaign
A union salting campaign is designed to intimidate or cripple a nonunion contractor. Part of the plan is to get the employer to say the wrong thing, no matter how inconsequential, and file unfair labor practice charges with the NLRB. The following sets fo...
Union salting: Supervisor do's and don'ts
A supervisor should: Tell your employees that the union is pressuring your company to sign a union agreement without an election by the employees. If the company signs an agreement, all employees will have to pay union dues from their paychecks. Tell empl...
Invoicing, Lien Waivers and Failure to Pay Invoices
Developing a schedule of values A schedule of values is typically required by the contract with the owner. The schedule should be prepared carefully, with specific and accurate values attached to each component of the work. The schedule should be submitte...
Construction Claims Based on Contract or Quasi-Contract
Claims against contracting party A subcontractor or materialman or prime contractor may bring a claim against the party it contracted with for breach of contract, including claims based on refusal to pay the contract price, refusal to pay for extra or cha...
Contractor's Reliance on Plans and Specifications
The Ohio Supreme Court recently limited a contractor’s ability to rely on the accuracy of plans and specifications provided by an owner. In Dugan & Meyers Construction v. Ohio Dept. of Administrative Services, the Court significantly limited the sco...
No Damage for Delay Clauses in Ohio
Pursuant to Ohio statutory law, "no damage for delay" clauses are enforceable in Ohio, unless the reason for the delay is the result of the owner's [or contractor's] act or failure to act. Ohio Revised Code §4113.62. The Franklin County Court of Appeals ...
No lien contract clauses
An owner in Ohio may have a contract provision providing that contractor may not file a lien on project. The enforceability of such a provision is questionable. However, some Ohio courts have upheld such "no lien" provisions against contractors ...
Notice of Commencement
In order to protect the owner and mandate notice to the owner of potential lien claimants, the Notice of Commencement must be prepared and filed before the project commences. The Notice of Commencement must be in affidavit form and include: (a) The legal ...
Notice of Furnishing
Potential lien claimants may be required to prepare and provide to 1) the owner, through its designee as noted on the Notice of Commencement, and 2) the original contractor a notice of furnishing in order to protect their lien rights. The Notice of Furnis...
Lien Affidavit
Requirements of a Lien Affidavit In the event that the contract is breached and payment is not received, an affidavit for mechanics’ lien may be filed to place a lien on the project. The affidavit of mechanics’ lien must include (a) the amount due ove...
Articles Index - Construction Articles
Contract Issues Contract dispute provisions Construction Contract FAQ Construction Contract Clauses FAQ Types of Construction Contracts Components of a Written Negotiated Construction Contract Indemnification Clauses in Construction Contracts No Damage fo...
Article Index - Union Salting Issues
Union Salting Issues Union Salting Campaigns FAQ Objectives of a Union Salting Campaign Union Salting Objectives Union salting: Winning a Union Salting Campaign Union salting: Combating a union salting campaign Union salting: Supervisor do's and don'ts Qu...
Timely Assertion of Contract Claims is Required
In a series of recent court opinions, Ohio’s courts have held that a contractor’s failure to strictly adhere to the requirements in the contract with regard to the filing of a claim waives the contractor’s claims. In Maghie & Savage,...
Limitations on Subcontractor Claims for Unjust Enrichment
Ohio courts have uniformly held that a subcontractor does not have a claim for unjust enrichment against an owner, if the owner fully paid the contractor for the work performed by the subcontractor. In order to establish unjust enrichment against an owner...
Economic waste and limitations of damages for construction defects
Ohio law on contract damages provides that the damages for defective construction are limited to the cost of the repair of the defective construction, unless the cost to repair is grossly disproportionate to the benefit obtained by the repair. Ohio cases ...
Beware of Contractual Dispute Provisions
Beware of Contractual Dispute Provisions A decision from the Franklin County Court of Appeals highlights the danger a contractor faces by failing to adhere to a contractual dispute provision. In Stanley Miller Construction Co. v. Ohio School Facilities Co...
What is a Fiduciary?
What is a Fiduciary? The majority or controlling shareholder in a close corporation owes his or her other co-shareholders fiduciary duties. A fiduciary is defined at common law as a person having a duty, created by his undertaking, to act primarily for th...
Does your insurer have a duty to defend?
There are two types of duties that an insurance company may have to its policy holder when a claim is made against the policy holder by a person or company that claims damage or injury (a claimant). The insurer may have a duty to defend the claim, thereby...
Minority Business Ownership in a Small Business: A Dream Fulfilled or a Nightmare Created?
SEQ CHAPTER h 1 Minority Business Ownership in a Small Business: A Dream Fulfilled or a Nightmare Created? A big part of the American Dream is to own a business. To achieve this dream, many owners start a business with one or more “partners” who ar...
Piercing the Corporate Veil
Piercing the Corporate Veil The principle that shareholders, officers, and directors of a corporation are generally not liable for the debts of the corporation is ingrained in Ohio law. Dombroski v. Wellpoint, Inc. The corporate form is useful primarily b...
Insurers have an obligation to defend and indemnify resulting construction damages.
Some courts have adopted a mantra that commercial general liability insurance policies are not “performance bonds” and, as such, do not to insure the risks of an insured causing damage to the insured's own work. This narrow view focuses on the perceiv...
Ohio law requires insurers to act in good faith.
Because of the nature of the relationship between an insurer and its insured, Ohio law requires an insurer to act in good faith in handling and paying the claims of its insured. Hoskins v. Aetna Life Ins. Co. A breach of this duty will give rise to a caus...
Insurance policies are to be interpreted in favor of the insured under Ohio law.
In the insurance field the insured usually has no voice in the preparation of the insurance policy and typically a great disparity exists between the economic positions of the parties to a contract of insurance. Furthermore, at the time an insured makes a...
Insurers have an obligation to defend and indemnify resulting construction damages.
Some courts have adopted a mantra that commercial general liability insurance policies are not “performance bonds” and, as such, do not to insure the risks of an insured causing damage to the insured's own work. This narrow view focuses on the perceiv...
The Scope of Appraisal Clauses
The Scope of Appraisal Clauses Many insurance policy holders may not know that their policies contain a mechanism to resolve disputes over the value of a loss that takes the valuation determination out of the hands of the insurance company. This mechanism...
Preserving and perfecting lien claims against Ohio oil and gas wells
The Ohio legislature has adopted a mechanics' lien law specifically for labor, work, or materials performed on oil and gas wells and facilities. The law states that "Every person who performs any labor or work upon or furnishes material for digging, drill...
The Scope of Insurance Coverage for Defective Construction
The Ohio Supreme Court issued a decision on October 16, 2012 in Westfield Insurance Co. v. Custom Agri Systems, Inc. solidifying the law in Ohio that coverage does not exist for claims of defective construction under a commercial general liability policy ...
Asbestos Notification and Inspection Requirements for Demolition and Renovation Work.
Asbestos Notification and Inspection Requirements for Demolition and Renovation Work. Prior to performing demolition and renovation work on commercial structures and certain multi-residential structures, the law requires a thorough inspection by a certifi...
Tackling Tough FMLA Issues - Designation, Serious Mental Health Conditions, Attendance Policies and So-Called Fraud
Stephanie Trudeau and I presented a paper this month to the Ohio State Bar Association's 50th annual Midwest Labor Law Conference. Stephanie is a partner with Ulmer & Berne. The paper we presented was on the Family and Medical Leave Act (FMLA). It...
Ohio House Bill 333 will let Owners sue Disabled People Seeking Access to Buildings
When property owners fail to provide access to disabled people as required by law, both Ohio and federal law let disabled people file suit to gain access. House Bill 333, proposed by Ohio House Representative Michael Stinziano, would bar that, unless the ...
Ohio Employers who Fail to Respond to Requests for Separation Information may now Pay for It
Ohio recently warned employers that they could be charged for unemployment compensation benefits received by employees who obtained them fraudulently. Ohio Department of Jobs and Family Services ("ODJFS") will now charge employers who "establish a pattern...
New contract rules for Home Construction Service Suppliers
New contract rules for Home Construction Service Suppliers A new Ohio law creates a new set of rules for residential contractors that, if followed, exempts contractors from liability under the Consumer Sales Practices Act for projects exceeding $25,000. I...
Ohio Supreme Court Expands Reach of Pay-if-Paid Contract Provisions
On July 17, the Ohio Supreme Court issued its decision in Transtar Electric, Inc. v. AEM Electrical Servs. Corp . The Court sanctioned the use of pay-if-paid provisions in construction contracts and expanded the reach of those provisions to clauses using ...
Arbitrator's Remedy Must Not be Contrary to Established Law
When an arbitrator awards a remedy that is contrary to established law and contrary to the remedy provided in the agreement, the award should be vacated. Such was the recent decision of the Supreme Court of Ohio in Cedar Fair, L.P. v. Falfas , , where the...
"Loser-Pays" Provision Invalidates Home Construction Arbitration Agreements
If you are a residential home construction contractor and have an arbitration clause in your building contracts, a recent decision by the Eighth District Court of Appeals may invalidate your arbitration clause. It had long been the law of Ohio that reside...
To Lien or Not to Lien - Do I Qualify for a Mechanic's Lien?
We are often asked "Can I file a lien?" for some new and different issues - such as "Can I file a lien for my surveying work?" Although mechanic's lien laws have been on the books in Ohio for almost 200 years, the answer is not alw...
Mechanic's Liens and Condominium Property
The mixed ownership interests in condominium property present a unique twist for the attachment and scope of mechanic's liens. This is because individual condominium unit ownership typically is from the drywall in while the condominium association own...
An Apology is not Enough to Avoid Sexual Harassment Liability
Liability for an employer’s harassing conduct is not avoided with a simple apology from the employer. Corrective actions are needed such as an investigation and subsequent disciplinary action. In Retuerto v. Berea Moving Storage & Logistics , an...
How the Same Sex Marriage Ruling will change Ohio Employment Laws
The United States Supreme Court struck down Ohio’s prohibition against marriages between same sex partners in Obergefell v. Hodges . In so doing, the Supreme Court recognized a fundamental right to marriage. The Supreme Court did not recognize a fun...
