Justia Construction Law Opinion SummariesArticles Posted in Real Estate & Property Law
Blue Appaloosa v. NDIC
Blue Appaloosa, Inc., appealed a judgment affirming an Industrial Commission order determining it violated N.D. Admin. Code ch. 43-02-03 by beginning construction of a treating plant prior to obtaining a permit or filing a bond with the Commission. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Blue Appaloosa v. NDIC" on Justia Law
Toman Engineering Co. v. Koch Construction, et al.
Koch Construction, Inc.; Marilyn Koch, Personal Representative of the Estate of Michael P. Koch; and Koch Property Investments, Inc. (collectively “appellants”) appealed the judgment and amended judgment entered in favor of Toman Engineering Company (“Toman”). Michael Koch owned and operated Koch Construction and Koch Property Investments (“KPI”). Toman provided engineering services to Koch Construction on various projects, including designing a stormwater management system for the Koch Meadow Hills residential development project in Dickinson, North Dakota. Michael died in August 2017. The stormwater management system included a detention pond referred to as the Marilyn Way Stormwater Pond, which was the detention pond at issue in this case. In 2016, Janet Prchal, Dean Kubas, and Geraldine Kubas, owners of property near the Koch Meadow Hills development, sued the City of Dickinson and KPI for damages, alleging the development of Koch Meadow Hills caused water to drain and collect on their properties. The Prchal lawsuit was settled in September 2018, and the settlement required modifications to be made to the Marilyn Way Stormwater Pond before June 30, 2019. The reconstruction work on the detention pond occurred during the summer and fall of 2019. Toman served a summons and complaint on Koch Construction and Marilyn Koch, to collect unpaid amounts for engineering services Toman provided to the defendants in 2017. Toman filed the complaint in the district court in June 2019. The appellants argued the district court erred in deciding they committed intentional spoliation of evidence and dismissing their counterclaim as a sanction. After review of the district court record, the North Dakota Supreme Court concluded the district court abused its discretion when it dismissed the appellants’ counterclaim as a sanction for spoliation of evidence. Judgment was reversed and the matter remanded for a new trial. View "Toman Engineering Co. v. Koch Construction, et al." on Justia Law
Kim v. TWA Construction, Inc.
The owners purchased the property in a wooded area of Los Gatos to build a home. They sought to remove some trees, including a large eucalyptus tree that straddled the property line, not realizing that the eucalyptus was partially on the neighbor’s property and that they needed her permission to remove it. They assumed they could remove the eucalyptus because they had received permits from the county. The owners’ general contractor, TWA, hired a subcontractor for tree trimming. The subcontractor damaged the eucalyptus tree.The neighbor sued. The owners filed a cross-complaint against TWA for comparative negligence, breach of contract, express contractual indemnity, equitable indemnity, and other claims. TWA filed a cross-complaint against the owners, alleging breach of contract and other claims. At trial, the owners and TWA settled the suit with the neighbor. The suits involving their cross-complaints continued. TWA presented no evidence that the subcontractor who worked on the eucalyptus was licensed for tree trimming work.The court of appeal affirmed that TWA was 100 percent at fault for the neighbor’s damages and had been paid $10,000 for the tree trimming services performed by the subcontractor. The court rejected arguments that the trial court erred in interpreting the licensing statute, Business and Professions Code section 7031.3, and misinterpreted the construction agreement. View "Kim v. TWA Construction, Inc." on Justia Law
Residences at Ivy Quad Unit Owners Ass’n, Inc. v. Ivy Quad Development, LLC
The Supreme Court reversed in part and affirmed in part the judgment of the trial court granting dismissal of Plaintiff's claims for breach of the implied warranty of habitability and negligence as to four of the defendants, holding that the complaint included facts capable of supporting relief on Plaintiff's implied-warranty-of-habitability claims against two of the defendants.Plaintiff, a homeowners' association, sued Defendants after discovering defects at a condominium complex. Four of the defendants filed a motion to dismiss, arguing that they were not subject to the implied warranty of habitability because they were not builder-vendors and that the negligence claim was barred by the economic loss doctrine. The trial court granted the motion. The Supreme Court reversed in part, holding (1) Plaintiff alleged facts capable of supporting relief on its implied-warranty-of-habitability claims against two of the defendants; and (2) Plaintiff alleged facts capable of supporting relief on its negligence claim. View "Residences at Ivy Quad Unit Owners Ass'n, Inc. v. Ivy Quad Development, LLC" on Justia Law
Fortney & Weygandt, Inc. v. Lewiston DMEP IX, LLC
The Supreme Judicial Court affirmed in part the judgment entered in the Business and Consumer Docket (BCD) awarding attorney fees and expenses to Forney & Weygandt, Inc. (F&W) but vacated a portion of the judgment awarding F&W attorney fees and expenses related to subcontractor claims, holding that remand was required.Lewiston DMEP IX, LLC, et al. (collectively, GBT), a group of limited purpose entities and a commercial real estate developer, appealed the attorney fees and expenses award to F&W, a commercial general contractor, pursuant to Maine's prompt payment statute, Me. Rev. Stat. 10, 1111-1120. Specifically, GBT contended that the BCD erred in awarding attorney fees and expenses that were not incurred in direct pursuit of F&W's prompt payment claims, including those related to F&W's contract claims, GBT's counterclaims and affirmative defenses, and subcontractor claims against F&W. The Supreme Judicial Court largely affirmed the judgment but vacated the award of attorney fees and expenses related to the subcontractor claims, holding that the court abused its discretion when it did not articulate a basis for an award of fees that would be proper under the prompt payment statute and this Court's interpretative case law. View "Fortney & Weygandt, Inc. v. Lewiston DMEP IX, LLC" on Justia Law
Estate of Greenwood v. Montpelier US Insurance Company, et al.
William Greenwood was in the business of salvaging valuable materials from old buildings. Greenwood was insured by Mesa Underwriters Specialty Insurance Company through a policy sold by Dixie Specialty Insurance. Greenwood was later sued by adjoining building owners who complained he had damaged their property, and Mesa denied coverage based, in part, on a policy exclusion for demolition work. Greenwood later brought suit against his insurers alleging breach of contract and bad-faith denial of coverage. Greenwood averred that his business was actually “deconstruction” rather than demolition, but the trial court granted summary judgment to the insurers. Finding no reversible error in that judgment, the Mississippi Supreme Court affirmed the trial court. View "Estate of Greenwood v. Montpelier US Insurance Company, et al." on Justia Law
Tergesen, et al. v. Nelson Homes
Jeanne and Nevin Tergesen appealed a judgment dismissing their complaint and awarding Nelson Homes, Inc. damages for its breach of contract counterclaim. The Tergesens argued the district court erred in dismissing their rescission and breach of contract claims, and the court erroneously found the Tergesens breached the contract. After review, the North Dakota Supreme Court concluded the district court did not err in dismissing the Tergesens’ claims or finding the Tergesens breached the contract, but the court did err in calculating the amount of prejudgment interest on Nelson Homes’ damages. View "Tergesen, et al. v. Nelson Homes" on Justia Law
Childs et al. v. Pommer
In case number 1190525, Paul Childs and Granger Construction Company, LLC ("Granger Construction"), appealed a circuit court judgment entered in favor of Harry ("Bud") and Brenda Pommer. In their cross-appeal, case number 1190580, the Pommers appealed the trial court's judgment entered in favor of Melissa Granger ("Melissa"), as the administratrix of the estate of Daniel Granger ("Granger"), deceased. In 2014, the Pommers decided to build a garage on property that they owned in Fairhope, Alabama. Childs was referred to Bud for the work. Childs brought Granger into the project as the licensed contractor for the work. The evidence presented at trial indicated that the project experienced significant delays. Evidence was presented indicating that Granger and Childs performed some of the physical labor on the project. In March 2015, when an invoice was presented to the Pommers, Bud and Brenda told the Childs and Granger that they did not want to give them another check based on how things had been going. A "heated" meeting between the parties resulted in the Pommers hiring an attorney. Bud requested the City conduct an inspection; the garage did not pass. The Pommers subsequently hired another contractor and other companies to repair work done by Granger Construction and to complete unfinished work on the project. The Pommers ultimately sued Childs and Granger Construction for breach of contract. Childs and Granger Construction filed their answer to the amended complaint and a counterclaim, asserting breach of contract/unjust enrichment against the Pommers. After review, the Alabama Supreme Court affirmed the trial court as to Granger Construction in case number 1190525. The Court reversed the trial court as to Childs, and rendered judgment in favor of Childs. In case number 1190580, the Court affirmed the trial court. View "Childs et al. v. Pommer" on Justia Law
Vera v. REL-BC, LLC
The Sellers bought an Oakland property to “flip.” After Vega renovated the property, they sold it to Vera, providing required disclosures, stating they were not aware of any water intrusion, leaks from the sewer system or any pipes, work, or repairs that had been done without permits or not in compliance with building codes, or any material facts or defects that had not otherwise been disclosed. Vera’s own inspectors revealed several problems. The Sellers agreed to several repairs Escrow closed in December 2011, but the sewer line had not been corrected. In January 2012, water flooded the basement. The Sellers admitted that earlier sewer work had been completed without a permit and that Vega was unlicensed. In 2014, the exterior stairs began collapsing. Three years and three days after the close of escrow, Vera filed suit, alleging negligence, breach of warranty, breach of contract, fraud, and negligent misrepresentation. Based on the three-year limitations period for actions based on fraud or mistake, the court dismissed and, based on a clause in the purchase contract, granted SNL attorney’s fees, including fees related to a cross-complaint against Vera’s broker and real estate agent.The court of appeal affirmed. Vera’s breach of contract claim was based on fraud and the undisputed facts demonstrated Vera’s claims based on fraud accrued more than three years before she filed suit. Vera has not shown the court abused its discretion in awarding fees related to the cross-complaint. View "Vera v. REL-BC, LLC" on Justia Law
Peoples Gas System v. Posen Construction, Inc.
The Supreme Court accepted certification of a question about theUnderground Facility Damage Prevention and Safety Act, Fla. Stat. Chapter 556, and answered that the Act creates a standalone cause of action and that the cause of action sounds in negligence.The United States Court of Appeals for the Eleventh Circuit certified the question of whether a member-operator has a cause of action under Fla. Stat. 556.106(2)(a)-(c) to recover damages or obtain indemnification from an excavator for payments to a third party for personal injuries related to the excavator's alleged violation of the statute. The Supreme Court answered (1) liability under the Act is subject to proof of proximate causation and to the defense of comparative fault; (2) losses recoverable under the Act can include purely economic damages, independent of personal injury or property damage; and (3) the Act does not create a cause of action for statutory indemnity. View "Peoples Gas System v. Posen Construction, Inc." on Justia Law