Justia Legal Ethics Opinion SummariesArticles Posted in Construction 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
Liberty Mutual Insurance Co. v. Housing Authority of New Orleans
The Housing Authority of New Orleans (HANO) agreed to pay Parkcrest $11 million to build affordable housing. Liberty was Parkcrest’s surety. HANO terminated Parkcrest before the project was done. Parkcrest sued, alleging breach of contract. Liberty and HANO executed a “Takeover Agreement,” incorporating the original contract; Liberty stepped into Parkcrest’s shoes to finish the project. Liberty hired Parkcrest as its completion contractor. HANO claimed that Liberty had forfeited any right to continue working on the project and requested that it relinquish control of the site. Liberty claimed the termination was wrongful. Rather than following the contract’s dispute resolution procedures, Liberty filed a complaint-in-intervention in the HANO-Parkcrest litigation.The district court concluded that HANO had breached the Takeover Agreement and the underlying HANO Contract by terminating Liberty for convenience after Liberty had substantially completed the project, awarded Liberty and Parkcrest damages, and held HANO liable to Liberty for attorney’s fees, but left those fees unquantified. The Fifth Circut affirmed but concluded it lacked jurisdiction to consider the fee award because a fee award is not a final judgment under 28 U.S.C. 1291 until reduced to a sum certain. The district court then awarded Liberty $526,192.25 in fees. The Fifth Circuit reversed. Liberty’s claim for fees arises from the contract, which authorizes fee-shifting “upon the receipt by [HANO] of a properly presented claim.” Liberty breached the contract’s dispute-resolution procedures, this breach was unexcused, so Liberty is entitled to nothing. View "Liberty Mutual Insurance Co. v. Housing Authority of New Orleans" on Justia Law
Randy Kinder Excavating, Inc. v. JA Manning Construction Company, Inc.
The Eighth Circuit affirmed the district court's award of $283,609.15 in attorneys' fees to Manning in this action arising out of a contract dispute between Kinder, a general contractor, and Manning, a subcontractor.The court concluded that the district court properly applied Arkansas state law to decide the matter because the issue of attorneys' fees is a procedural matter governed by Arkansas law. The court also concluded that the subcontract's silence as to Manning's ability to recover attorneys' fees as the prevailing party does not operate as a waiver of its right to recover such fees under Ark. Code Ann.16-22-308. The court further concluded that because the requested attorneys' fees were incurred by Manning, Manning's recovery of such attorneys' fees is not prohibited under Ark. Code Ann. 23-79-208. View "Randy Kinder Excavating, Inc. v. JA Manning Construction Company, Inc." 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
International Fidelity Insurance Co. v. Americaribe-Moriarity JV
Americaribe, a general contractor, appealed the district court's award of attorney's fees to Fidelity, the surety on a performance bond issued for a construction subcontract between Americaribe and the subcontractor CPM. The Eleventh Circuit reversed and held that Fidelity was not entitled to recover the attorney's fees it incurred in this litigation because neither the performance bond nor the subcontract provided for such an award of prevailing party attorney's fees. Because the district court abused its discretion in awarding Fidelity attorney's fees, the court remanded for further proceedings. View "International Fidelity Insurance Co. v. Americaribe-Moriarity JV" on Justia Law
Lomas v. Kravitz
In this appeal, the Pennsylvania Supreme Court was asked to determine whether a trial court erred by denying a motion to recuse the entire bench of the Court of Common Pleas of Montgomery County. Appellant James Kravitz was the sole officer, director, and shareholder of several companies known as the Andorra Group, which included Appellants Cherrydale Construction Company, Andorra Springs Development, Inc., and Kravmar, Inc., which was formally known as Eastern Development Enterprises, Incorporated (“Eastern”). Kravitz also owned a piece of property known as the Reserve at Lafayette Hill (“Reserve”). Andorra Springs was formed to develop residential housing on sections of the Reserve. In 1993, Andorra Springs hired Cherrydale as the general contractor to build the homes on the Reserve. Eastern operated as the management and payroll company for the Andorra Group. Appellee Roy Lomas, Sr., d/b/a Roy Lomas Carpet Contractor was the proprietor of a floor covering company. Cherrydale and Lomas entered into a contract which required Lomas to supply and install floor covering in the homes being built by Cherrydale. Soon thereafter, Cherrydale breached that contract by failing to pay. Lomas demanded that Cherrydale submit Lomas’ claim to binding arbitration as mandated by the parties’ contract. The parties arbitrated the matter, and a panel of arbitrators entered an interim partial award in favor of Lomas, finding that Cherrydale breached the parties’ contract. Following Kravitz’s unsuccessful attempt to have the interim award vacated, the arbitrators issued a final award to Lomas. Judgment was entered against Cherrydale in the Court of Common Pleas of Montgomery County. Important to this appeal, then-Attorney, now-Judge Thomas Branca represented Lomas throughout the arbitration proceedings. Since the entry of judgment, Kravitz actively prevented Lomas from collecting his arbitration award by, inter alia, transferring all of the assets out of Cherrydale to himself and other entities under his control. In March 2000, Lomas commenced the instant action against Appellants. Then-Attorney Branca filed the complaint seeking to pierce the corporate veil and to hold Kravitz personally liable for the debt Cherrydale owed to Lomas. Approximately one year later, then-Attorney Branca was elected to serve as a judge on the Court of Common Pleas of Montgomery County. Prior to taking the bench, then Judge-Elect Branca withdrew his appearance in the matter and referred the case to another law firm. After several years of litigation, the parties agreed to a bifurcated bench trial. Although Appellants acknowledged that they were unaware of any bias or prejudice against them on the part of Judge Rogers or any other judge of the Court of Common Pleas of Montgomery County, Appellants maintained that Judge Branca’s continued involvement and financial interest in the case created an “appearance of impropriety” prohibited by the Code of Judicial Conduct. Specifically at issue before the Supreme Court was whether the moving parties waived their recusal claim and, if not, whether the claim had merit. The Court held that the recusal issue was untimely presented to the trial court and, thus, waived. View "Lomas v. Kravitz" on Justia Law
St. Simons Waterfront, LLC v. Hunter, Maclean, Exely & Dunn, P.C.
Appellant St. Simon's Waterfront, LLC ("SSW") sued its former law firm, Appellee Hunter, Maclean, Exley & Dunn, P.C. ("Hunter Maclean"), over the firm's representation in a commercial real estate venture. During the litigation, SSW sought production of communications between Hunter Maclean attorneys and the firm's in-house general counsel, which took place during the firm's ongoing representation of SSW, in anticipation of potential malpractice claims by SSW. Hunter Maclean asserted that the materials were protected from disclosure by the attorney-client privilege and work product doctrine, but the trial court disagreed and ordered their production. On appeal, the Court of Appeals vacated the trial court's order and remanded for further consideration. Upon review, the Supreme Court held that the same basic analysis that is conducted to assess privilege and work product in every other variation of the attorney-client relationship should also be applied to the law firm in-house counsel situation. The Court vacated the judgment of the Court of Appeals. View "St. Simons Waterfront, LLC v. Hunter, Maclean, Exely & Dunn, P.C." on Justia Law
Mayor & Alderman of the City of Savannah v. Batson-Cook Co., et al.
This case arose out of a contractual dispute between the city and its contractor and sub-contractor concerning the design and construction of an underground parking garage. At issue was whether the city's petition for a writ of certiorari to the court of appeals to decide whether that court erred when it determined the trial judge did not err when, having been presented with a motion to recuse him, he denied the motion rather than referred it to another judge. The court held that, since the affidavits at issue raised a reasonable question about the trial judge's impartiality that required the assignment of the motion to recuse to another judge, the court of appeals erred when it affirmed the trial judge's denial of the motion to recuse for failure to meet the requirement of USCR 23.5. Accordingly, the court reversed and remanded. View "Mayor & Alderman of the City of Savannah v. Batson-Cook Co., et al." on Justia Law
Smith v. Donald L. Mattia, Inc.
Plaintiffs, David and Barbara Smith, asserted various claims arising out of the construction of their home against Defendants, Donald L. Mattia, Inc. (DLM), Donald Mattia, and Barbara Joseph (Barbara). The Chancery Court (1) granted Defendants' motion for summary judgment on (i) Plaintiffs' breach of contract claim and (ii) Plaintiffs' civil conspiracy claim; (2) denied Defendant's motion for summary judgment on (i) Plaintiffs' claim for misappropriation of Plaintiffs' backfill and money paid to DLM that was not applied to their project and (ii) Plaintiffs' claim that Defendants fraudulently induced Plaintiffs to purchase excess lumber and misappropriated $8,836 in connection with the purchase of excess lumber; (2) granted Plaintiffs' motion for summary judgment, as Defendants did not articulate a viable cause of action in their counterclaim; and (3) denied Barbara's motion for Chan. Ct. R. 11 sanctions where there was no evidence that Plaintiffs' attorney did not have a good faith belief in the legitimacy of the claims asserted against Barbara. View "Smith v. Donald L. Mattia, Inc." on Justia Law