Justia Construction Law Opinion Summaries

Defendants-counterclaimants Jeanmarie Leonard and Carol Sayour appealed the grant of summary judgment on their counterclaims in favor of plaintiff Jennifer Weinstein and third-party defendants, Lloyd Weinstein, plaintiff’s husband, and his law firm, The Weinstein Group, P.C. This case started in an application for a permit to construct a barn made by defendants in May 2012. Defendants received a zoning permit from Manchester’s zoning administrator allowing them to construct a barn on Lot #10. Pursuant to the Declaration for Rocking Stone Farm, defendants received a waiver from the Homeowner’s Association. Plaintiff appealed the permit to the Manchester Development Review Board (the “DRB”). The DRB affirmed the grant of the permit. Defendant Leonard and her husband were walking along Lot #10 with a landscape contractor when plaintiff began yelling at them from her upstairs window. Plaintiff then left her home and entered Lot #10, accompanied by a “very large dog.” Despite being asked to leave, she physically confronted the Leonards, who eventually left the lot. Two days later, plaintiff filed an appeal of the DRB’s decision to the Environmental Division of the Superior Court. Plaintiff, a trained attorney, initially represented herself, but Mr. Weinstein and his law firm, The Weinstein Group, P.C., entered an appearance as counsel for her. Both the Association and counsel for defendants advised plaintiff by letter that her opposition to the barn permit constituted a violation of the Non-Interference Clause of the Declaration, which provided that each owner of a lot in Rocking Stone Farm agreed “not [to] take any action to contest or interfere with any development in the Community so long as such development is consistent with the Land Use Approvals.” The Environmental Division rendered judgment in favor of defendants. Plaintiff appealed that decision to the Supreme Court. Shortly thereafter, Plaintiff also filed suit against defendants in superior court with a ten-count complaint, alleging, among other things, that the Declaration had been breached by defendants’ construction of the barn. Defendants filed counterclaims against plaintiff for trespass, civil assault, breach of contract, tortious invasion of privacy, as well as abuse of process and third-party claims against Mr. Weinstein and his law firm for abuse of process and breach of contract. Finding no reason to disturb the trial court’s grant of summary judgment as it did in plaintiff’s favor, the Supreme Court affirmed. View "Weinstein v. Leonard" on Justia Law

In 2012, the South Dakota Department of Revenue (Department) commenced an audit of Taxpayer’s excise tax and sales tax licenses for tax period 2009 through 2012. At issue in this case was whether Taxpayer’s construction management at-risk services provided to public and non-profit entities were subject to a contractor’s excise tax under S.D. Codified Laws 10-46A-1. Taxpayer did not remit excise tax on the gross receipts it received from its construction management at-risk services provided to public and non-profit entities. As a result of the audit, the Department issued Taxpayer a certificate of assessment for $43,020, which included excise tax and interest. The circuit court reversed the Department’s certificate of assessment, ruling that Taxpayer’s services were not subject to a contractor’s excise tax under section 10-46A-1. The Supreme Court reversed, holding that Taxpayer’s act of entering into a contract with a public entity to guarantee a satisfactorily completed public improvement project by a specific date for a specific cost was subject to excise tax under section 10-46A-1. View "Puetz Corp. v. S.D. Dep’t of Revenue" on Justia Law

Henderson Square Condominium Association sued the developers, alleging: breach of the implied warranty of habitability, fraud, negligence, breach of the Chicago Municipal Code’s prohibition against misrepresenting material facts in the course of marketing and selling real estate. The court dismissed with prejudice, finding that plaintiffs failed to adequately plead the Chicago Municipal Code violation and breach of fiduciary duty and that those counts were time-barred. The appellate court reversed the dismissal of those counts and the Illinois Supreme Court affirmed. The claims at issue are construction-related and governed by the limitation and repose of section 13-214 of the Code of Civil Procedure, but the fraud exception applied and issues of material fact remained concerning misrepresentations or actions that could support a finding of fraudulent concealment. The defendants were alleged to be “more than silent” regarding insulation and funding of the reserves. The Municipal Code allows private parties to seek damages under its provisions and there were allegations that defendants had a fiduciary duty to budget for reasonable reserves, given allegedly known latent defects. View "Henderson Square Condo. Assoc'n v. LAB Townhomes, LLC" on Justia Law

Continental Partners bought a lot with two building pads from Yellowstone Development that was part of the Yellowstone Club subdivision. The purchase and sale agreement included an assurance that the houses Continental intended to build on the lot would have ski-in and gravity ski-out access built by the Yellowstone Club. During construction, Continental sold the homes to separate buyers, including the managing member of WLW Realty Partners, LLC. Before construction on the ski-out access on the two homes had begun, the Yellowstone Club filed for bankruptcy protection. The subsequent owners of Yellowstone Club informed the new owners that ski-out access to the homes would not be constructed. WLW Realty filed this action against Continental, alleging, inter alia, negligent misrepresentation and violation of the Montana Consumer Protection Act (MCPA). After a bench trial, the district court entered judgment for WLW Realty. The Supreme Court reversed, holding that the district court erred by (1) imposing liability on Continental for negligent misrepresentation, as WLW Realty failed to satisfy the first and second elements of the tort; and (2) finding that Continental had violated the MCPA, as Continental did not engage in unfair or deceptive acts or practices. View "WLW Realty Partners, LLC v. Continental Partners VIII, LLC" on Justia Law

High Noon at Arlington Ranch Homeowners Association filed a complaint against D.R. Horton, Inc. alleging breach of implied warranties of workmanlike quality and habitability, breach of contract, breach of express warranties, and breach of fiduciary duty. High Noon moved, ex parte, for a stay and enlargement of time for service of the complaint until the Nev. Rev. Stat. Chapter 40 prelitigation process for constructional defect cases was complete. The district court granted High Noon’s motion. The Chapter 40 process was still not complete more than eight years later. In these original petitions for extraordinary relief, D.R. Horton argued that the district court erred when it initially granted the ex parte stay and further erred when it denied a motion to dismiss the underlying complaint pursuant to the five-year rule in Nev. R. Civ. P. 41(e) when the Chapter 40 process was still not complete. The Supreme Court denied both of these petitions for a writ of prohibition or mandamus, concluding (1) the district court’s order granting a stay was not in error; and (2) the five-year period was tolled under the Boren exception to Rule 41(d). View "D.R. Horton, Inc. v. Eighth Judicial Dist. Court" on Justia Law

In 2005 the Army Corps of Engineers invited bids on a federal reservoir project in Illinois. One of the successful bidders was Slurry, which leased from Pileco a trench cutter made by Bauer. Slurry was a prime contractor on the Corps of Engineers’ project; the Miller Act, 40 U.S.C. 3131, requires prime contractors on some government construction projects to post bonds. Slurry used Fidelity as surety. The bond insured against a failure by Slurry to pay subcontractors, such as Pileco. Contending that the cutter was defective, Slurry refused to pay the agreed rental price. Pileco sued Slurry and Fidelity, asserting breach of contract that Fidelity violated the Miller Act by failing to reimburse Pileco for costs associated with Slurry’s reneging on its obligation to pay. Slurry counterclaimed. A second trial resulted in a verdict in Pileco’s favor except for a $357,716 equitable adjustment in favor of Slurry, based on time that cutter was inoperable because of a defect attributable to Pileco. The net result was that Pileco was awarded $2.23 million against Slurry for breach of contract and the same amount against Fidelity for the Miller Act violation. The Seventh Circuit affirmed, except with respect to the denial of prejudgment interest and costs. View "Pileco, Inc. v. Slurry Systems, Inc." on Justia Law

Plaintiffs, homeowners, brought this action against Defendants, the company that constructed Plaintiffs’ home and the developer of the lot on which the home was built, alleging negligent construction of the home. Defendants moved for summary judgment, asserting that the action was barred by the four-year statute of limitations set forth in Neb. Rev. Stat. 25-223. The district court granted summary judgment in favor of Defendants. The court of appeals affirmed as to the developer but reversed as to the construction company, finding the action against it was not barred by section 25-223. The Supreme Court reversed and remanded with directions to affirm the judgment of the district court, holding that the court of appeals erred in concluding that the statute of limitations began to run on Plaintiffs’ claims at the expiration of the express one-year limited warranty issued by the construction company instead of the date the home was substantially completed. View "Adams v. Manchester Park" on Justia Law

This appeal stemmed from the disputed assignment of certain construction work on the Tappan Zee Hudson River Crossing Project. UBC appealed the district court's conclusion that a May 4th arbitration award was not final and that the arbitrator did not exceed his authority by issuing a May 12th arbitration award. Under a heightened standard of deference, the court concluded that it must defer to the arbitrator’s interpretation of Article 10, Section 3(D) of the Project Labor Agreement (PLA) as allowing him to alter the short‐form award when rendering his written opinion. The PLA does not define the term “short‐form,” nor does it specifically require that the second decision echo the result of the first.  The court concluded that, absent any such definitions or provisions, the arbitrator had the authority to interpret Article 10, Section 3(D) as allowing him to change or alter the first award in order to ensure full consideration of the three criteria required under Article 5, Section 8 of the National Plan for the Settlement of Jurisdictional Disputes in the Construction Industry. Accordingly, the court confirmed the May 13th Award and vacated the May 4th Award. View "United Brotherhood of Carpenters v. Tappan Zee Constructors, LLC" on Justia Law

A certified question of Oregon law was certified to the Oregon Supreme Court from the United States Court of Appeals for the Ninth Circuit. The question arose out of a construction contract dispute in which a homeowner's association sued a builder in state court for construction defects. The homeowner's association and the builder settled, and the settlement included an unconditional release and covenant not to execute against the builder. When the homeowner's association attempted to garnish the builder's liability insurance policy, however, the insurer claimed that it had no liability because the settlement unconditionally released its insured from any liability. The state trial court agreed, and the builder appealed. Meanwhile, in response to the state trial court's conclusion that the settlement agreement eliminated the insurer's liability, the homeowner's association and the builder amended their settlement agreement to eliminate the unconditional release and covenant not to execute. Pursuant to the new agreement, the builder initiated this action in federal court against its insurer. In the federal court action, the insurer argued that the state court already had determined that, given the terms of the original settlement, the builder could not recover under its insurance policy and that the parties lacked authority to create any new insurance coverage obligation by amending their settlement agreement. The federal district court agreed. On appeal, the Ninth Circuit certified a question on whether the homeowner's association and the builder could amend their settlement agreement in such a way as to revive the liability of the builder's insurer. After review, the Oregon Court concluded that, although the parties possessed authority to amend the terms of their settlement agreement, they could not do so in a way that retroactively revived the liability that was eliminated in their original agreement (at least not on the basis of the legal theories that they proposed). View "A&T Siding, Inc. v. Capitol Specialty Ins. Corp." on Justia Law

Defendant Capitol Specialty Insurance Co. moved to dismiss this appeal on mootness grounds. According to Capitol, the issues to be decided in the appeal pertained to the terms of an agreement settling an underlying construction defect case, but those terms were superseded by amendments to the agreement adopted during the pendency of the appeal. The Oregon Supreme Court concluded that, because the amendments to the settlement agreement did not have the effect of superseding the terms of the original agreement, a judicial decision about that original agreement will have a practical effect on the rights of the parties. Consequently, the appeal was not moot, and the motion to dismiss was denied. View "Brownstone Homes Condo. Assn. v. Brownstone Forest Hts." on Justia Law