Justia Construction Law Opinion Summaries

Ivory Homes purchased various concrete products from a company that, when it delivered the products, provided an invoice that charged a single sales price without indicating separate delivery charges. Ivory Homes then discovered if it structured its transactions with the company differently and bargained for separate and independent delivery charges, the charges would not be taxable. Subsequently, Ivory Homes filed a refund request with the Utah Taxpayer Services Division for sales tax it paid for several years on expenses associated with the concrete products. The Division denied the refund. The Utah State Tax Commission also denied the refund request. The Supreme Court affirmed the Tax Commission's decision that it did not erroneously receive any tax and that Ivory Homes was not entitled to a tax refund where (1) under a substantial evidence standard of review, the Commission correctly made findings of fact that the parties did not intend delivery charges in their original transactions; and (2) alternatively, a plain language interpretation of the Refund Statute requires that the Tax Commission commit some error in its receipt of taxes before a taxpayer is entitled to a refund. View "Ivory Homes, Ltd. v. Utah Tax Comm'n " on Justia Law

Defendants Scott and Christina Lees appealed a trial court decision that found in favor of Plaintiff Stephen Wyle on his claim of negligent misrepresentation. In 2002, Defendants purchased a two-unit apartment building. Defendants wished to expand the building, and approached a contractor to add a third apartment to the back of the property. Conditional approval for the site plan was granted in November 2003 and final approval was obtained in January 2004. However, Defendants did not obtain the proper permits prior to building or occupying the unit. As a result, the town's building inspector never inspected the unit. The Lees again hired the contractor both to complete a second addition to the property. Defendants again failed to secure the necessary building permits. After the completion of construction, town officials visited the property a number of times in 2006 and 2007. The town informed Defendants that "[s]ave for acceptable field changes[,] the site plan requirements have been satisfied." Defendants listed the property for sale in 2007. After entering into the agreement, Plaintiff had a comprehensive home inspection performed and sent a list of specific concerns regarding the property to Defendants. The concerns were either remedied by the Defendants or waived by Plaintiff prior to closing. Approximately six weeks after closing, the entire property was inspected by the town building inspector and fire chief which revealed numerous building and life safety code violations. Plaintiff was ordered not to occupy the unit until he corrected the violations and made the site compliant with site plan regulations. After correcting the violations, Plaintiff then brought a single claim against Defendants for negligent misrepresentation. Following a two-day bench trial, the trial court issued an order awarding damages to the Plaintiff. Upon review of the trial court record, the Supreme Court found that the evidence at trial established that Defendants negligently misrepresented that the premises were licensed for immediate occupancy and that they had obtained all the necessary permits. Accordingly, the Court found that the trial record supported the decision in favor of Plaintiff, and the grant of damages. View "Wyle v. Lees" on Justia Law

Frederick and Mandelena Harmon bought a home pursuant to a buy-sell agreement that realtor Dianne Burright, a licensed real estate salesperson who worked for Fiscus Realty, prepared at the Fiscus Realty office. The home was built by Dianne's husband, Jerry. The Harmons subsequently discovered numerous construction problems. The Harmons sued Defendants Jerry and Dianne Burright and Fiscus Reality, raising several causing of action, including a claim under the Unfair Trade Practices and Consumer Protection Act (the Act). A jury returned a verdict against the Burrights on breach of warranty and negligent misrepresentation claims and held for Defendants on all other claims. After trial, Defendants filed motions for attorney fees as prevailing parties under the Act, which the district court denied. Fiscus Realty appealed. The Supreme Court affirmed, holding that the district court did not abuse its discretion in denying an award of attorney fees to Fiscus Realty as the Harmons' claims had a basis in fact and law and were not frivolous, unreasonable or unfounded. View "Harmon v. Fiscus Realty" on Justia Law

This consolidated appeal arose from a contract dispute between Douglas Asphalt Company (Douglas) and the Georgia Department of Transportation (GDOT) where GDOT had awarded Douglas two paving contracts to mill and resurface certain stretches of interstate highway. GDOT subsequently retained QORE, Inc., an engineering and materials testing company, to remove asphalt samples from the first project site and conduct tests to determine the samples' lime content. QORE retained, at GDOT's direction, Applied Technical Services, Inc. (ATS), to perform a test that GDOT developed, called an atomic absorption test. QORE and ATS sent the data that those tests produced to GDOT for its analysis and consideration and GDOT concluded from those data that the asphalt that Douglas had laid did not contain enough hydrated lime; GDOT then relied, in part, on those test results to justify its decision to place Douglas in default on both highway contracts. Douglas responded by filing this action against QORE, ATS, and several individual GDOT officials. On appeal, Douglas contended that the district court erred by dismissing its Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968, claims and by granting summary judgment for QORE on its claims for defamation and negligence. ATS maintained that the district court erroneously failed to grant its motions for judgment as a matter of law on both the defamation and negligence claims. The court held that the district court did not err in dismissing Douglas's RICO claim and that QORE and ATS were entitled to judgment as a matter of law on both the defamation and negligence claims. Therefore, the court affirmed in part, reversed in part, vacated the judgment against ATS, and remanded for entry of judgment in favor of ATS. View "Douglas Asphalt Co., et al. v. QORE, Inc., et al." on Justia Law

An employee of the general contractor on a construction site was allegedly injured by the negligent act of the employee of a subcontractor who carried no workers' compensation insurance. Plaintiff, the injured party, brought a common-law action against Defendants, the uninsured subcontractor and its employee, the alleged tortfeasor. The Defendants filed a plea in bar, asserting that the Virginia Workers' Compensation Act was Plaintiff's sole remedy. The circuit court held that Defendants' failure to carry workers' compensation insurance deprived them of the protections afforded by the Act because they were not participants in the statutory workers' compensation system. The court denied the plea in bar, permitting the action to go forward, but certified the case for an interlocutory appeal. The Supreme Court reversed the judgment appealed from and entered final judgment dismissing the case, holding that the circuit court erred in denying Defendants' plea in bar because Defendants were entitled to the exclusivity protection provided by the Act notwithstanding their lack of workers' compensation insurance. View "David White Crane Serv. v. Howell" on Justia Law

Sammy Thomas and Pam Thomas appealed the Blount Circuit Court's order granting a motion to compel arbitration filed by Sloan Homes, LLC ("Sloan Homes"), David Sloan, and Teresa Sloan in the Thomases' action alleging breach of contract and tortious conduct in relation to the construction of a house by Sloan Homes, the grantor under the residential sales agreement. The question presented by this appeal was whether, under the doctrine of merger, the execution and delivery of the deed in this case nullified an arbitration clause included in the antecedent residential sales agreement. Upon review, the Supreme Court found that the arbitration clause was still valid, thereby affirming the circuit court's order granting Sloan Homes and the Sloans' motion to compel arbitration of the Thomases' claims. View "Thomas v. Sloan Homes, LLC" on Justia Law

Plaintiff Carter Boehm, Trustee, sued Defendants Cokedale, L.L.C. and Allen Carter for property damages when, during construction of a road to reach Defendants' land, rocks of various sizes rolled downhill onto Plaintiff's property. Plaintiff subsequently added claims for assault and battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. The district court granted summary judgment in favor of Defendants, concluding that Boehm was not the trustee of any trust validly established under Montana law, and therefore Boehm was perpetuating the lawsuit on behalf of a non-existent trust. The district court also awarded Defendants attorneys' fees and costs. The Supreme Court affirmed in part and reversed in part, holding (1) the district court properly granted summary judgment to Defendants pursuant to Mont. R. Civ. P. 17(a), which requires that every action shall be prosecuted in the name of the real party in interest; and (2) the district court abused its discretion in awarding attorneys' fees to Defendants. The award of fees was reversed. View "Boehm v. Cokedale" on Justia Law

Francis Weber was severely burned by hot mineral water when he lost consciousness in a steam room in Hot Spring State Park. Weber brought a personal injury action against several defendants, including the State. The district court granted summary judgment in favor of the State, concluding that it was immune from suit pursuant to the Wyoming Governmental Claims Act. The Supreme Court reversed, holding that the State's activities in the park fell within the statutory waiver of immunity for operation and maintenance of a public park as (1) overseeing building construction on leased property and delivery of hot mineral water to lessees are part of the State's operation of the park, and (2) under these circumstances, the State's operation and maintenance of the park included overseeing and/or inspecting its lessee's property. Remanded. View "Weber v. State" on Justia Law

At issue in this extraordinary writ proceeding was whether Nev. Rev. Stat. 11.259(1) compels dismissal where the initial pleading in an action alleging nonresidential construction malpractice was served without filing the attorney affidavit and expert report required by Nev. Rev. Stat. 11.258(1) and (3). The Supreme Court granted the writ, holding that a defective pleading served in violation of section 11.258 is void ab initio and of no legal effect and, thus, cannot be cured by amendment. The Court held that because the initial pleadings served by certain real parties in interest in this case did not include the attorney affidavit and expert report as required by section 11.258, those pleadings were void ab initio, and the district court did not have discretionary authority to allow the parties to amend their pleadings to cure their failure to comply with section 11.258. View "Otak Nevada, L.L.C. v. Dist. Court" on Justia Law

K & L Homes appealed a district court judgment based upon a jury verdict in favor of Neal Leno and Susan Leno ("the Lenos"). On appeal, K & L Homes argued: (1) the district court erred by deciding K & L Homes had not sufficiently raised the defense of fault by the Lenos in its answer; (2) the court erred by refusing to instruct the jury on comparative fault, the court erred by denying K & L Homes' request for inspection and not allowing a defendant to testify on his observations during a jury viewing; and (3) the court erred by ruling K & L Homes had not disclaimed any implied warranties as a matter of law. The Lenos purchased a newly-constructed house from K & L Homes. The Lenos alleged they noticed cracks, unevenness, and shifting due to improper construction not long after purchasing the house from K & L Homes. Initially, the Lenos claimed K & L Homes was negligent, breached the parties' contract, and breached implied warranties. The Lenos claimed the parties' contract implied warranties that the house would be built according to the applicable codes, that it would fit its purpose as a residence, and that it would be constructed according to engineering standards and in a workmanlike condition. K & L Homes requested the jury be instructed on comparative fault, but the district court denied the proposed comparative fault instruction. The district court decided K & L Homes had not adequately pled fault, and comparative fault did not apply to Lenos' cause of action. The district court also found, as a matter of law, that K & L Homes had not disclaimed any implied warranties in a Homeowners' Guide given to the Lenos at the closing on the house. Upon review, the Supreme Court agreed with the findings made by the district court and affirmed its decisions as to all issues raised on appeal. View "Leno v. K & L Homes" on Justia Law