Justia Construction Law Opinion Summaries

American Environmental, Inc. (plaintiff) challenged the Burlington School District (defendant) over a contract awarded for the demolition and remediation of Burlington High School, which was closed due to toxic substances. The District sent a Request for Qualifications to fifteen contractors, including the plaintiff and the winning bidder, EnviroVantage. The plaintiff argued that EnviroVantage did not meet the prequalification criteria and that the contract should have been awarded to them.The Superior Court, Chittenden Unit, Civil Division, denied the plaintiff's request for a preliminary injunction, citing potential financial harm to the District and public interest. The court later granted summary judgment to the District, finding the case moot because the project was substantially complete. The court applied factors from Citineighbors Coalition of Historic Carnegie Hill ex rel. Kazickas v. New York City Landmarks Preservation Commission, determining that no effective relief could be granted due to the project's advanced stage.The Vermont Supreme Court took judicial notice of the project's completion, including demolition and soil remediation, based on public records and visual evidence. The court dismissed the appeal as moot, stating that no effective relief could be provided under Rule 75, which does not allow for damages. The court also rejected the plaintiff's argument that the case met the exception for issues capable of repetition yet evading review, noting the plaintiff's delay in seeking expedited relief and the lack of demonstrated probability of encountering the same situation again. View "American Environmental, Inc. v. Burlington School District" on Justia Law

Subcontractor Construction Drilling, Inc. (CDI) appealed a trial court’s judgment on the merits in its breach-of-contract claim against Engineers Construction, Inc. (ECI). CDI contended the trial court erred in: (1) holding that the terms of the parties’ subcontract required CDI to request a change order before it billed ECI for “drilling in obstructions” in excess of CDI’s bid price; (2) denying CDI’s motions to reopen the evidence and for a new trial; and (3) awarding ECI $234,320 in attorneys’ fees under the Prompt Payment Act. ECI cross-appealed, arguing the trial court improperly allowed CDI’s owner to offer opinion testimony absent a finding of reliability under Vermont Rule of Evidence 702 and maintaining that his testimony could not have met this standard in any event. Therefore, should the Vermont Supreme Court reverse the trial court’s denial of CDI’s breach-of-contract claim, ECI asserted the matter had to be remanded for a new trial without such testimony. The Court affirmed the trial court, and therefore did not reach the issue raised in ECI’s cross-appeal. View "Construction Drilling, Inc. v. Engineers Construction, Inc." on Justia Law

On a winter night in 2014, strong winds blew through the town of Georgia, Vermont, causing a partially constructed livestock barn to collapse. Commercial Construction Endeavors, Inc. (CCE), the contractor building the barn, sought recompense for the resulting losses from its insurer, Ohio Security Insurance Company. However, insurer and insured disagreed as to policy coverage for costs incurred by CCE in removing the remains of the collapsed barn and rebuilding it to its pre-collapse state. Ultimately, CCE sued Ohio Security for breach of contract. In successive summary-judgment rulings, the trial court held that the contractor’s rebuilding expenses were covered under the policy, but the cost of debris removal was not. Ohio Security cross-appealed the first ruling and CCE appealed the second; the Vermont Supreme Court reversed the first ruling and affirmed the second. The Court determined the additional collapse coverage applied only to “Covered Property,” which was business personal property; CCE did not dispute that the barn was not business personal property and thus was not “Covered Property.” Therefore, the court’s first summary-judgment ruling was reversed. The debris removal was not a loss involving business personal property. As a result, it was not a loss to “Covered Property” at that term was defined by the policy at issue. View "Commercial Construction Endeavors, Inc. v. Ohio Security Insurance Company" on Justia Law

After a bench trial, a trial court issued a judgment and order which held, among other things, that Wright & Morrissey owed J & K Tile Co. $42,000 plus interest under a Memorandum of Understanding (MOU) between the parties, and that Wright & Morrissey unlawfully withheld J & K Tile Co.’s retainage check in violation of the Vermont Prompt Pay Act. Following this decision a few months later, the court further held that each party was the prevailing party in a portion of the litigation and should be awarded attorney’s fees regarding that portion. Wright & Morrissey appealed, and J & K Tile Co. cross-appealed. With regard to the retainage, the Vermont Supreme Court determined the trial court did not err. However, with respect to the prevailing party issue, the Supreme Court determined “a fee award should not be apportioned among claims that arise from a common core of facts.” Although not all of the evidence was relevant to all the claims, all the evidence, and all the theories of liability, related to the same common core of facts. J & K Tile Co. itself treated the claims as arising from a common core of facts, as evidenced by their combining the failure-to-mediate and breach-of-contract allegations into a single count. The Supreme Court concluded the trial court should have determined who was the substantially prevailing party as a whole, considering all the claims together. Accordingly, it reversed the order regarding attorney’s fees and remanded the matter to the trial court for further proceedings. View "J & K Tile Company" on Justia Law

Appellants Icon Legacy Custom Modular Homes, LLC and Icon Legacy Transport, LLC challenged a series of trial court orders in favor of appellees Dagney Trevor, Merusi Builders, Inc., Osborne Construction, LLC, and Paul Osborne. This appeal arose from the sale and construction of a new modular home that suffered from significant deficiencies. Trevor purchased the modular home; Icon Legacy Custom Modular Homes, LLC (Icon Legacy) and Icon Legacy Transport, LLC (Icon Transport) manufactured and transported the home; Osborne Construction, LLC (Osborne Construction) and Paul Osborne (Osborne) were collectively the contractor involved in the assembly the home; Merusi Builders, Inc. (Merusi) was a subcontractor involved in the assembly of the home. Though not parties to this appeal, Vermont Modular Homes, Inc., David Curtis, and Blane Bovier were Icon’s Vermont-based “approved builders” and three of the defendants in the suit below. In 2015, Trevor purchased an Icon Legacy Custom Modular Home as a replacement to one she lost to fire. The home sustained significant water damage during a rainstorm when water entered the home before the roof installation was complete. Other structural defects emerged after Trevor moved into the home. Although Icon and Vermont Modular Homes repaired some of the damage, major defects relating to both the water damage and alleged improper construction remained in the home. Ultimately judgement was entered against Icon. Icon appealed, arguing multiple errors leading to the outcome against it. The Vermont Supreme Court reversed as to the trial court's thirty-percent upward adjustment of the lodestar damages calculation, and remanded for the trial court to strike that amount from Trevor's attorney fee award. The Court affirmed the trial court in all other respects. View "Trevor v. Icon Legacy Custom Modular Homes, LLC, et al." on Justia Law

During road-construction operations, a truck owned or operated by Eustis Cable Enterprises, LTD, which was participating in the construction activity, struck and killed a flagger for Green Mountain Flaggers. The truck hit the flagger when the driver began backing it up in the southbound breakdown lane on Route 7 in Middlebury, Vermont. In response to the accident, the Commissioner of Labor investigated and ultimately cited Eustis for two alleged violations of 29 C.F.R. 1926.601: a failure to ensure that the vehicle’s backup alarm was audible above the surrounding noise level; and a failure to assure the safety devices were in a safe condition at the beginning of each shift. The Commissioner assessed $11,340 in fines ($5670 for each violation). Eustis appealed the civil division’s affirmance of the Vermont Occupational Safety and Health Act (VOSHA) review board’s determination that Eustis failed to meet VOSHA’s motor-vehicle requirements and the resulting assessment of a fine for the violations. The Vermont Supreme Court concluded the evidence and findings did not support the board’s conclusion that Eustis was on notice of the violation and accordingly reverse and strike the citation alleging a violation of 29 C.F.R. 1926.601(b)(14) and associated penalty. View "Commissioner of Labor v. Eustis Cable Enterprises, LTD" on Justia Law

The Vermont Agency of Transportation (VTrans) appealed the Transportation Board’s order granting judgment to W.M. Schultz Construction, Inc. in this contract dispute. Schultz entered into a contract with VTrans in December 2013 to replace four bridges destroyed by Tropical Storm Irene. Three bridges were completed without incident. This dispute centered on the fourth bridge, referred to as “Bridge #19.” The Bridge #19 project involved the construction of a single-span steel-girder bridge over the White River in Rochester, Vermont. The west abutment was to be placed on a deep pile foundation and the east abutment (Abutment #2) was to be placed on ledge. The work was to begin in April 2014 and be completed in a single construction season. The Board concluded that Schultz encountered “differing site conditions” in carrying out its bridge-construction project and that it was entitled to an equitable adjustment for costs it incurred as a result. VTrans appealed, arguing the Board misread the contract materials and otherwise erred in granting judgment to Schultz. Finding no reversible error, the Vermont Supreme Court affirmed. View "W.M. Schultz Construction, Inc. v. Vermont Agency of Transportation" on Justia Law

In 2001, plaintiffs Margaret and John Abajian hired architectural firm TruexCullins, Inc., to design additions to their home. Plaintiffs hired Thermal Efficiency Construction, Ltd. (TEC) to serve as the general contractor for the project. TEC contracted with Murphy’s Metals, Inc. to do the roofing work. The roof was installed during the winter of 2001-2002. Plaintiffs had experienced problems with ice damming on their old roof, which was shingled. Defendants recommended that plaintiffs install a metal roof to alleviate the problem. Plaintiffs accepted the suggestion, hoping that the metal roof would result in fewer ice dams. Mr. Abajian testified in his deposition that he “thought that the metal roof was going to eliminate” the ice damming. In 2014, after the roof turned out to be defective, plaintiffs sued the architecture and construction firms that designed and installed the roof for negligence and breach of contract. The trial court granted summary judgment to defendants on the ground that the action was barred by the statute of limitations. Finding no reversible error in the grant of summary judgment to defendants, the Vermont Supreme Court affirmed. View "Abajian v. TruexCullins, Inc." on Justia Law

Several carpenters, including one single-member LLC, an installer of cement siding, and a painter contended they were employees of Bourbeau Custom Homes, Inc. for the purposes of Vermont’s unemployment compensation system. Bourbeau challenged that classification, contending that it was not liable for unemployment taxes on monies paid to a carpenter operating as a single-member LLC because an LLC was not an “individual” under the unemployment tax statute and therefore not subject to the ABC test established by 21 V.S.A. 1301(6)(B). Second, Bourbeau argued the Employment Security Board erred in applying the ABC test with respect to all of the workers whose remuneration is the subject of this appeal. The Vermont Supreme Court agreed with Bourbeau on the first point and held that an LLC was not an “individual” for the purposes of assessing unemployment taxes. However, the Court affirmed the Board’s determination that the remaining four individuals were employees for purposes of Vermont’s unemployment compensation system. View "In re Bourbeau Custom Homes, 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