Justia Construction Law Opinion Summaries

In 2005, Masterklad built a house in Glenview, including a brick patio that extended off the rear of the house. Because the ground underneath the patio sloped down, dirt and gravel were placed underneath it to support the bricks and make them level with the house's rear entrance. A retaining wall was built to contain the fill. In 2007, the house was sold by Masterklad to a Lubeck for $1,710,000. In the contract Lubeck “knowingly, voluntarily, fully and forever,” waived the implied warranty of habitability in exchange for an express warranty provided by Masterklad, with a one-year term. In 2010, Lubeck sold the house to Fattah, for $1,050,000, with a document stating that the house was being sold “as is” and that the seller made no representations or warranty regarding its condition. In 2011, parts of the retaining wall around the rear patio gave way and part of the patio collapsed. The owner sued. The circuit court found that the patio wall had given way due to latent defects in its construction, but that plaintiff could not recover because Masterklad had executed a valid, enforceable waiver of the implied warranty of habitability with Lubeck. The appellate court reversed. The Illinois Supreme Court reversed. The implied warranty of habitability may not be extended to a second purchaser of a house when a valid, bargained-for waiver of the warranty has been executed between the builder-vendor and the first purchaser. View "Fattah v. Bim" on Justia Law

The utility and its insurers filed suit against BendTec for negligence, alleging that its pipes were the source of grit and had been improperly cleaned. The district court granted summary judgment to BendTec. The court affirmed the judgment, agreeing with the district court's conclusion that the negligence claim was barred under the two year limitations period in Minn. Stat. 541.051 since the installation of the turbine was an improvement to real property. Because the two year statute of limitations in Minn. Stat. 541.051 applies and the subdivision 1(e) exception does not, and plaintiffs did not file this lawsuit within the limitations period, the district court correctly granted summary judgment to BendTec. View "Associated Electric & Gas Ins. v. BendTec, Inc." on Justia Law

Picerne Construction Corp. agreed to build an apartment complex for Castellino Villas. After construction started, Castellino refinanced the property, replacing the original lender with Bank of the West. Picerne subsequently claimed money due, recorded a mechanic’s lien, and brought this action against Castellino and Bank of the West to foreclose on the lien. Following a bench trial, the trial court entered judgment in favor of Picerne. Castellino argued on appeal: (1) Picerne did not have a valid mechanic’s lien because it did not record its claim within 90 days after substantial completion of the project; (2) the doctrine of judicial estoppel prevented Picerne from taking contrary positions at arbitration and at trial; (3) Picerne did not timely record a claim of mechanic’s lien as to nine distinct buildings within the project; and (4) the trial court erred in calculating the amount of the lien. Bank of the West agreed that Picerne failed to timely record its claim of mechanic’s lien. In addition, Bank of the West contends (5) that Picerne’s complaint against it is time-barred because Picerne did not name Bank of the West as a defendant in the original complaint even though it was aware of facts indicating it had a claim against the bank. After review, the Court of Appeal concluded: (1) Picerne timely recorded its mechanic’s lien; (2) Castellino failed to demonstrate the applicability of judicial estoppel; (3) the property constituted one residential unit; (4) the trial court overstated the principal sum due and failed to subtract the $115,453.50 setoff from the principal sum, but the other claims of error with regard to the lien amount have no merit; and (5) the action against Bank of the West was not time-barred because Picerne timely substituted Bank of the West in place of a Doe defendant when Picerne learned of the bank’s interest in the property. The Court modified the judgment to provide that the mechanic’s lien was in the amount of $2,416,855.06 and affirmed the judgment as modified. View "Picerne Construction v. Castellino Villas" on Justia Law

In 2011, Henderson Square Condominium Association sued, alleging: breach of the implied warranty of habitability, fraud, negligence, breach of the Chicago Municipal Code’s prohibition against misrepresenting material facts in marketing and selling real estate, and breach of a fiduciary duty. The defendants were developers that entered into a contract with the city for a mixed use project, the Lincoln-Belmont-Ashland Redevelopment Project. Sales in the project had begun in 1996. The trial court dismissed, finding that plaintiffs failed to adequately plead the Chicago Municipal Code violation and breach of fiduciary duty and that counts were time-barred under the Code of Civil Procedure (735 ILCS 5/13-214). The appellate court reversed. The Illinois Supreme Court affirmed. A condominium association generally has standing to pursue claims that affect the unit owners or the common elements. A question of fact remains as to whether defendants’ failure to speak about construction deficiencies or to adequately fund reserves, coupled with earlier alleged misrepresentations, amounted to fraudulent concealment for purposes of exceptions to the limitation and repose periods. It is possible that minor repairs, along with the limited nature of water infiltration, reasonably delayed plaintiffs’ hiring of professional contractors to open the wall and discover latent defects. The date when plaintiffs reasonably should have known that an injury occurred and that it was wrongfully caused was a question of fact. View "Henderson Square Condo. Ass'n v. LAB Townhomes, LLC" on Justia Law

Arrow Midstream Holdings, LLC and Arrow Pipeline, LLC (collectively "Arrow") appealed, and Tesla Enterprises, LLC ("Tesla") cross-appealed, a judgment dismissing without prejudice for lack of jurisdiction its action against 3 Bears Construction, LLC and Tesla for breach of contract and a declaration that Tesla's pipeline construction lien was invalid. In 2013, Arrow hired 3 Bears to be the general contractor for the construction of a pipeline located on a right-of-way easement acquired by Arrow from the Bureau of Indian Affairs over Indian trust land on the Fort Berthold Indian Reservation. 3 Bears entered into a subcontract with Tesla to supply materials and labor for the construction. 3 Bears was owned by two members of the Three Affiliated Tribes ("Tribe") and was certified under the Tribal Employment Rights Ordinance ("TERO"). 3 Bears claimed Arrow was a covered employer who was required to comply with TERO rules. After the pipeline was completed, a dispute arose between 3 Bears and Tesla concerning amounts Tesla claimed it was owed by 3 Bears for work Tesla performed. In mid-2014, Tesla sent Arrow a notice of right to file a pipeline lien under N.D.C.C. ch. 35-24. Tesla recorded the pipeline lien against Arrow in the Dunn County recorder's office in June 2014. In July 2014, Arrow commenced this action in state district court challenging the validity of the pipeline lien, seeking indemnification, and claiming 3 Bears breached the parties' contract. In August 2014, 3 Bears moved to dismiss for lack of subject matter jurisdiction. In November 2014, 3 Bears filed a complaint against Tesla and Arrow in Fort Berthold Tribal Court. 3 Bears sought a declaration that the pipeline lien was invalid, alleged Arrow had breached the master service contract, and requested an award of damages. In December 2014, the state district court agreed with 3 Bears' argument that it lacked subject matter jurisdiction over the lawsuit. The court concluded "exercising jurisdiction over this action under the circumstances presented here would infringe upon Tribal sovereignty." The court further concluded, "at the very least, Arrow and Tesla, as a matter of comity, should be required to exhaust their tribal court remedies before this Court exercises jurisdiction." The court dismissed the action "without prejudice to allow any of the parties to re-open the case without payment of another filing fee should it become necessary for purposes of enforcing the Tribal Court action or for any other reason." After review of the matter, the North Dakota Supreme Court reversed and remanded, concluding the district court had jurisdiction over this lawsuit. View "Arrow Midstream Holdings, LLC v. 3 Bears Construction, LLC" on Justia Law

Respondents Mesiti Development, Inc., JVL Construction Company, Inc., and Brook Hollow Corporation, appealed a superior court order dismissing their counterclaims against petitioner Town of Londonderry. In 2012, the Town filed a bill of interpleader to determine whether $264,517.02 in surplus impact fees collected under the Town’s impact fee ordinance should have been refunded to the developers who paid the impact fees or to the current owners of the properties for which the fees had been paid. Although the Town’s impact fee ordinance specifies that the current owners are entitled to the refunds, the Town sought to confirm that the ordinance is consistent with the impact fee statute. The bill listed seventeen properties and their respective impact fee payors and current owners. Additional parties intervened thereafter. Several parties, including the respondents, moved to add counterclaims alleging, among other things: (1) violations of RSA 674:21, V; (2) negligence; (3) violation of fiduciary duties owed to impact fee payors; (4) violation of the public trust in government; and (5) violation of the municipal budget law. The Town filed a motion to dismiss these counterclaims, which the trial court granted. This appeal followed. Finding no reversible error in the order dismissing these claims, the Supreme Court affirmed. View "Town of Londonderry v. Mesiti Development, Inc." on Justia Law

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

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

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

Lori Ihli appealed a district court judgment dismissing her claims against Anthony Lazzaretto, d/b/a Lazzaretto Construction ("Lazzaretto"). In June 2011, Ihli's Minot home flooded. Ihli contacted Lazzaretto for an estimate to repair the home, and in February 2012, she accepted Lazzaretto's bid proposal. Lazzaretto began working on Ihli's home; however, a dispute arose between the parties regarding the quality of the work, and Lazzaretto ceased working on the home. In November 2012, Ihli applied for federal disaster relief funding to repair or replace her house through the City of Minot Disaster Recovery Homeowner Rehabilitation and Reconstruction Program. Ihli sought estimates from two construction companies, Real Builders, Inc. and Wright Brothers, to "repair" and complete the project. Ihli then sued Lazzaretto, alleging he damaged her property by performing remodeling work in a negligent manner. After commencing the suit against Lazzaretto, she learned she was eligible for the disaster relief funding in "late August 2013." In Ihli's deposition, Ihli stated that program administrators inspected the house and recommended the house be torn down and replaced, instead of being repaired. After Ihli commenced the suit against Lazzaretto and learned of her eligibility for disaster relief funding and after Ihli's counsel granted Lazzaretto's counsel an extension to file Lazzaretto's answer to Ihli's complaint, Ihli allowed the house to be demolished. Before the house was demolished, Ihli's attorney had advised Ihli to take photos or video of the property before the house was torn down. Ihli never informed Lazzaretto of the plan to demolish the house. After the house was demolished, Lazzaretto served its answer. In June 2014, Lazaretto moved for sanctions, requesting the case be dismissed due to Ihli's spoliation of evidence. Ihli then moved to amend her complaint, seeking to add a claim for breach of contract. After a hearing on both motions, the district court denied Ihli's motion to amend the complaint, granted Lazzaretto's motion for sanctions, and dismissed Ihli's claims. On appeal, Ihli argued the district court erred in dismissing her case as a sanction for spoliation of evidence because the sanction was overly severe and an abuse of discretion. Ihli also argued the district court erred in denying her motion to amend the complaint because Lazzaretto was on notice of the proposed breach of contract claim and would not have been prejudiced. Under the facts of this case, the Supreme Court concluded the district court did not abuse its discretion in imposing the sanction of dismissal and denying Ihli's motion to amend. View "Ihli v. Lazzaretto" on Justia Law