Justia Construction Law Opinion Summaries

This action was brought by Inn By the Sea Homeowner’s Association, Inc. (“IBTS”) against various defendants involved in the development, design, and construction of Inn By the Sea Condominiums when the condominiums were rebuilt after being destroyed by Hurricane Katrina. Within a year of reconstruction, significant problems with the building began to manifest, problems allegedly related to defects in the design and construction of the property. The trial court granted summary judgment to the defendants after excluding the damages testimony of IBTS’s expert witnesses. IBTS hired Michael Bailey of Kyle Associates, LLC, as its expert structural engineer and Alfred Hayes of Hayes Architect as its expert architect to investigate and identify defects in the design and construction of the property. IBTS timely designated its experts and produced a copy of the witnesses’ reports and cost estimates. In late August 2012, IBTS learned that Michael Bailey had suddenly left his job, moved out town, and could not be located or further made available as an expert on this case. At a subsequent hearing, the trial court orally continued the case without a new trial date in order for IBTS to find a new engineering expert. IBTS hired Ashton Avegno to replace Bailey. Avegno provided his report on November 2, 2012. In addition to largely agreeing with Bailey’s original report, Avegno also expressed concern that the foundation pilings “as designed” were overloaded by as much as “2.82 times its safe capacity and the as built piling would be loaded 2.16 times its capacity.” Avegno was unwilling, however, to provided exact itemized cost estimates for the items of engineering defects he identified. IBTS informed the court that IBTS had been unable to depose any of the defendants’ witnesses, including any of the defendants, and that a new scheduling order should be issued to allow IBTS to conduct depositions and to seasonably supplement its expert reports. The defendants objected to the proposed new scheduling order, arguing that the deadline for expert designations had passed and that Avegno should not be allowed to offer any new opinions, including his opinion that the foundation piles were overloaded. The court granted the motion to exclude Avegno. At some point, Hayes was asked to supplement his report. The defendants moved to strike Hayes’s supplementation and renewed their motion for summary judgment. The court granted the defendants’ motion to exclude Alfred Hayes’s damages testimony as well as the defendant’s motion for summary judgment and final judgment. Inn By the Sea timely appealed. Upon review, the Supreme Court concluded that the trial court did not abuse its discretion in excluding the plaintiff’s witnesses, and therefore affirmed the grant of summary judgment. View "Inn By The Sea Homeowner's Association, Inc. v. SeaInn, LLC" on Justia Law

Jim Hein hired John Sott and his companies (collectively, Sott) to construct a log home for him and then, later, an addition to the home. Hein eventually filed a complaint against Sott alleging negligence, negligent misrepresentation, and violation of the Montana Consumer Protection Act (CPA). The district court dismissed Hein’s claims related to the construction of the home as time-barred and then dismissed Hein’s remaining claims on the ground that Hein had not provided expert evidence that Sott’s work was either defective or caused Hein damage. The Supreme Court affirmed, holding that the district court (1) correctly determined that Hein’s negligence and negligent misrepresentation claims arising from water damage to his home were barred by the statute of repose; (2) did not err in determining that Hein’s CPA claims for damages arising two years before Hein filed his complaint were barred by the statute of limitations but erred in determining that Hein’s CPA claims based on alleged deceptive acts or practices in the performance of repairs occurring less than two years before Hein filed his complaint were barred by the statute of limitations; and (3) erred in determining that Hein was required to produce expert evidence for his CPA claim arising from Sott’s billing for work on the addition. View "Hein v. Sott" on Justia Law

John and Jane Couto entered into a contract with Joseph General Contracting, Inc. for the purchase and construction of a home and carriage house. The trial court found that the contract existed also between the Coutos and Anthony Silvestri, the owner and president of Joseph General. After disputes arose regarding the construction of the dwellings, Joseph General sued the Coutos for, inter alia, breach of contract. The Coutos counterclaimed against Joseph General, Silvestri and Landel Realty, LLC. The trial court held Joseph General, Landel and Silvestri each jointly and severally liable for breach of contract and implied warranty, trespass and violation of the Connecticut Unfair Trade Practices Act (CUTPA). Silvestri appealed the propriety of these adverse rulings with respect to his personal liability. The Appellate Court affirmed the judgment pertaining to Silvestri in an individual capacity. The Supreme Court reversed the judgment of the Appellate Court as to the claims of breach and contract and implied warranty against Silvestri in his individual capacity and affirmed in all other respects, holding that the Appellate Court (1) erred in determining that Silvestri had incurred contractual obligations to the Coutos in his individual capacity; and (2) properly determined that Silvestri could be held individually liable for alleged violations of CUTPA. View "Joseph Gen. Contracting, Inc. v. Couto" on Justia Law

Defendant-appellant Ryan Ridens received a fifteen-year mandatory-minimum sentence enhancement established by the Armed Career Criminal Act (ACCA) for certain felons with three or more prior convictions for “violent felon[ies]” or “serious drug offense[s].” He claimed the district court erred in imposing the enhancement because: (1) a burglary conviction used to trigger the sentence should not have counted as a “violent felony” because there was insufficient proof that it was a qualifying burglary within the meaning of the ACCA; and (2) triggering the mandatory minimum with the judicially found fact of his three prior qualifying convictions violated the Sixth Amendment. Finding no reversible error in the district court's decision, the Tenth Circuit affirmed his sentence. View "United States v. Ridens" on Justia Law

The Ninth Circuit Court of Appeals certified a question of Washington law to the Washington Supreme Court. The issue centered on how the term "collapse" was interpreted under Washington law in an insurance policy that insured "accidental direct physical loss involving collapse," subject to the policy's terms, conditions, exclusions and other provisions, but did not define "collapse" except to state that "collapse [did] not include settling, cracking, shrinking, bulging or expansion." The Washington Court concluded that in the insurance contract, "collapse" means "substantial impairment of structural integrity." "Substantial impairment of structural integrity" means substantial impairment of the structural integrity of a building or part of a building that renders such building or part of a building unfit for its function or unsafe and, under the clear language of the insurance policy here, must be more than mere settling, cracking, shrinkage, bulging, or expansion. View "Queen Anne Park Homeowners Ass'n v. State Farm Fire & Cas. Co." on Justia Law

The Montara Owners Association (homeowners) sued developer and general contractor, La Noue Development, LLC for damages caused by design and construction defects in the building of the Montara townhomes. The defects included problems with the framing, siding, decking, and windows, resulting in water intrusion and water damage. La Noue, in turn, filed a third-party complaint against multiple subcontractors, including Vasily Sharabarin, dba Advanced Construction (Sharabarin), who provided siding work on four buildings. Before trial, La Noue settled with the homeowners for $5 million (eliminating the first-party litigation from the case) and also reached settlements with most of the third-party subcontractors. La Noue did not settle with Sharabarin. Because of various pretrial rulings, the only claims submitted to the jury were La Noue’s breach of contract claims against Sharabarin and two other subcontractors. Before trial, the trial court granted summary judgment in favor of Sharabarin on La Noue’s claim for contractual indemnity, on the ground that the indemnification provision on which La Noue had relied was void under ORS 30.140. The trial court also held that the court would decide whether La Noue could recover the attorney fees that it had incurred in defending against the homeowners’ claims as consequential damages for Sharabarin’s breach of contract and that the court would resolve that issue after trial. In its post-trial ruling on the attorney fee issue, the court ultimately held that La Noue could not recover attorney fees as consequential damages in the case, even after trial, and denied La Noue’s claim for those attorney fees. The issues this case presented for the Supreme Court's review centered on: the proper application of ORS 30.140; whether it was error for the trial court to give an instruction on the economic waste doctrine in the absence of any evidence on the alternative measure of damages, diminution in value; and whether a third-party plaintiff can recover attorney fees as consequential damages for a third-party defendant’s breach of contract when the attorney fees were incurred in the first-party litigation in the same action. The Supreme Court concluded that it was error to have given the economic waste instruction. The Court affirmed on the Court of Appeals' decisions as to the other issues presented, and remanded for the trial court to consider the general contractor’s substantive right to attorney fees. View "Montara Owners Assn. v. La Noue Development, LLC" on Justia Law

After a jury trial, Defendant was found guilty of felony theft. The Supreme Court affirmed, holding (1) there was sufficient evidence for the jury to reasonably conclude that Defendant possessed the requisite intent to deprive; (2) the district court did not abuse its discretion when it imposed no sanction for the State’s discovery violation; (3) the district court erred when when it allowed evidence of Defendant’s prior felony conviction, but the error was harmless; (4) the district court did not commit plain error when it prohibited defense counsel from questioning a police officer about Defendant’s “nonstatements” made during his interview following his arrest; and (5) Defendant waived his right to challenge the district court’s response to the jury question under the invited error doctrine. View "Toth v. State" on Justia Law

Cody McDonald was injured while working on the construction of a building. RTK Construction, Inc. hired Ponderosa Enterprises Inc. to frame the building, and Ponderosa hired McDonald as an independent contractor to assist with the framing. McDonald brought suit against Ponderosa and RTK, alleging, inter alia, negligence and violation of the Montana Occupational Safety and Health Act (MOSHA). The district court granted partial summary judgment on the MOSHA claims, concluding that because McDonald was an independent contractor at the time of his injury, Ponderosa and RTK did not owe him any duties of safety under MOSHA. RTK was subsequently dismissed from the case, and a jury found that Ponderosa was not negligent. The Supreme Court affirmed, holding that MOSHA does not create a duty for employers to meet certain safety guidelines with respect to independent contractors. View "McDonald v. Ponderosa Enters., Inc." on Justia Law

In 2010, the United States Department of the Navy entered into an agreement with Contracting Systems, Inc. II ("CSI"), per which CSI served as the general contractor for the construction of an addition to, and renovations of, the Navy/Marine Corps Reserve Training Center in the Lehigh Valley. CSI, in turn, subcontracted with Appellee, Clipper Pipe & Service, Inc. for the performance of mechanical and heating, ventilation, and air conditioning work. Clipper filed suit against CSI and its surety, the Ohio Casualty Insurance Company (collectively "Appellants"), in the United States District Court for the Eastern District of Pennsylvania, asserting that CSI had failed to pay approximately $150,000 to Clipper, per the terms of their agreement. Among other claims, Clipper advanced one under the Contractor and Subcontractor Payment Act (CASPA). Appellants moved for summary judgment, arguing that CASPA did not apply to public works projects, because a governmental entity does not qualify as an "owner" under the statutory definition, as such an entity is neither a "person" nor an "other association." The federal district court denied relief on Appellants' motion. Among other aspects of its holding, the court followed "Scandale Associated Builders & Eng'rs, Ltd. v. Bell" which held that a governmental entity may be an "owner" under CASPA, since the statutory definition of "person" does not exclude the federal government, and the purpose of CASPA is to protect contracting parties. Clipper prevailed at the subsequent jury trial, and the district court awarded interest, penalties, and attorney fees. Appellants appealed to the United States Court of Appeals for the Third Circuit. The Pennsylvania Supreme Court accepted certification from the Third Circuit to determine whether a CASPA applied to the public works project in this case. After review, the Supreme Court concluded that CASPA did not apply to a construction project where the owner was a governmental entity. View "Clipper Pipe v. Ohio Casualty Ins." on Justia Law

A homeowner sued a general contractor for allegedly shoddy and incomplete work in connection with a major home remodeling contract. The homeowner’s complaint also contained a cause of action against the general contractor’s license bond company, seeking to recover for the contractor’s having “grossly deviated” from the plans and specifications for the job. To support his action, the homeowner explicitly alleged in the complaint that the contractor was licensed at all times. The contractor cross-complained against the homeowner for unpaid work. The cross-complaint included a copy of their written contract which showed the contractor’s license number. To that, the homeowner simply filed a general denial of all allegations. When the case came to trial, the homeowner (contrary to the applicable local rule requiring plaintiffs to identify all controverted issues) did not identify licensure as a controverted issue. The contractor’s attorney did not obtain a verified certificate from the Contractors’ State License Board showing the contractor was licensed at all times during his performance. But when the contractor was about to rest his case on the cross-complaint, the homeowner’s attorney made a motion for nonsuit based on the absence of such a verified certificate as required under Business and Professions Code section 7031, subdivision (d). The trial judge deferred immediate ruling on the homeowner’s nonsuit motion. "As the contractor learned to his chagrin, it [...] takes at least six days to obtain a verified certificate from the License Board even if one drives overnight to Sacramento to pick it up in person." While the contractor was eventually able to obtain a verified certificate of licensure from the License Board, he could not do so until after the close of the trial, in which he prevailed on his claim for unpaid work from the homeowner. Because no certificate of licensure could be produced, the trial judge reluctantly granted the homeowner’s nonsuit motion, by judgment notwithstanding the verdict (JNOV). This appeal followed. After review, the Court of Appeal reversed that judgment in favor of the homeowner, with instructions to the trial judge to grant judgment in favor of the general contractor as against the homeowner. "We conclude this is one of those relatively rare cases where a party can be bound by a judicial admission made in an unverified complaint. Here, the judicial admission that the general contractor was licensed, compounded by the homeowner’s failure to comply with the local rule requiring identification of all controverted issues, rendered the question of licensure assuredly uncontroverted for purposes of section 7031. Because of the judicial admission, the rule of 'Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc.' (153 Cal.App.4th 621 (2007)) does not apply." View "Womack v. Lovell" on Justia Law