Hard to Believe It, Construction Law Musings is 16
January 07, 2025 —
Christopher G. Hill - Construction Law MusingsOn this date back in 2008 (wow, that seems so long ago), I began Construction Law Musings on the Blogger platform with a brief announcement. Little did I know that this corner of the internet (or is it Blawgosphere?) would still be around in 2024!
In the time since I made that short entry 16 years ago (I know, I can’t believe it either), I’ve met several construction lawyers here in Virginia who refer to me as the “blog guy.” To be recognized for the work I do here at Construction Law Musings, something that benefits me (and I hope the readers), and which I do for the fun of it, is an honor.
The blog has since taken on a life of its own in many respects, allowing me to meet some of the great construction pros who have provided a guest post or two for Musings and added their different perspectives. Musings also kept me up on at least most of the trends in Virginia construction law by making me post consistently (though sometimes less consistently than others). Now, around 975 posts and 16 years later, I find it hard to believe that so much time has passed and effort has been put into what started on a whim and the plan that I’d post thoughts on the legal landscape and construction from the perspective of a Virginia construction lawyer.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Mind The Appeal Or: A Lesson From Auto-Owners Insurance Co. V. Bolt Factory Lofts Owners Association, Inc. On Timing Insurance Bad Faith And Declaratory Judgment Insurance Claims Following A Nunn-Agreement
August 06, 2019 —
Jean Meyer - Colorado Construction LitigationOn May 30, 2019, Judge Richard Brooke Jackson of the United States District Court for the District of Colorado offered an insightful lesson to the parties in Auto-Owners Insurance Co. v. Bolt Factory Lofts Owners Association, Inc.[1] on the importance of ripeness in declaratory judgment insurance actions and bad faith counterclaims. The case arrived in front of Judge Jackson based on the following fact pattern.
A homeowner association (Bolt Factory Lofts Owners Association, Inc.) (“Association”) brought construction defect claims against a variety of prime contractors and those contractors subsequently brought third-party construction defect claims against subcontractors. One of the prime contractors assigned their claims against a subcontractor by the name Sierra Glass Co., Inc. (“Sierra”) to the Association and all the other claims between all the parties settled. On the eve of trial involving only the Association’s assigned claims against Sierra, the Association made a settlement demand on Sierra for $1.9 million. Sierra asked its insurance carrier, Auto-Owners Insurance, Co. (“AOIC”), which had been defending Sierra under a reservation of rights letter, to settle the case for that amount, but AOIC refused. This prompted Sierra to enter into a “Nunn-Agreement” with the Association whereby the case would proceed to trial, Sierra would refrain from offering a defense at trial, the Association would not pursue any recovery against Sierra for the judgment, and Sierra would assign any insurance bad faith claims it may have had against AOIC to the Association. (“Nunn-Agreement”)
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Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLCMr. Meyer may be contacted at
meyer@hhmrlaw.com
Another Setback for the New Staten Island Courthouse
January 13, 2014 —
Melissa Zaya-CDJ STAFFThe new Staten Island Courthouse received another setback when James McDonough filed suit stating unsafe work conditions, according to Frank Donnelly writing for Silive. The completion date for the new multistory, $230 million complex has been rescheduled four times so far.
Fifty-eight year old James McDonough, resident of Ridgewood Queens, became injured after a fall down a shaft, and he subsequently “sued the city, state Dormitory Authority, the state Office of Court Administration and various contractors,” Donnelly reported. A total of ten defendants have been named in the suit.
According to Silive, the Office of Court Administration, Dormitory Authority and the Law Department would not comment on the pending litigation further except to say that papers have been filed and the case is under review.
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Texas Court of Appeals Conditionally Grant Petition for Writ of Mandamus to Anderson
April 25, 2011 —
Beverley BevenFlorez CDJ STAFFThe Texas Court of Appeals conditionally grant mandamus relief to Anderson Construction Company and Ronnie Anderson (collectively “Anderson”)… from the trial court in a construction defect lawsuit filed by Brent L. Mainwaring and Tatayana Mainwaring. See Tex. Prop. Code Ann. 27.001-.007 (West 2000 & Supp. 2010). Relators contend the trial court abused its discretion by compelling discovery while the case was abated by operation of law.
The Court of Appeals opinion describes what led up to the proceedings: “The Mainwarings’ original petition identified certain defects in their Anderson-constructed home. Those defects concerned the roof trusses and framing, air conditioning, mortar and masonry, exterior doors and windows, and weep holes. With respect to the five areas of defects identified in their original petition, the Mainwarings gave Anderson the statutorily required notice on January 13, 2010. After implementing agreed extensions, Anderson made an offer of settlement for the defects the Mainwarings identified in their notice. Almost eight months later, the Mainwarings filed an amended petition adding defects they had not included in their original petition and notice. The additional defects the Mainwarings included in their amended petition had not been addressed by Anderson’s offer of settlement.”
Following these events, Anderson claimed the Mainwarings did not respond in writing to their settlement offer. “Anderson filed a verified plea in abatement on December 2, 2010. In the trial court, Anderson claimed that the Mainwarings failed to respond in writing to Anderson’s settlement offer, as required by Section 27.004(b) of the RCLA. See Tex. Prop. Code Ann. 27.004(b)(1). The Mainwarings moved to compel discovery responses from Anderson. The Mainwarings alleged that they rejected Anderson’s settlement offer, and that if their response was insufficient, they contend that Anderson’s offer was rejected by operation of law on the twenty-fifth day after the Mainwarings received it. See Tex. Prop. Code Ann. 27.004(i). The Mainwarings’ motion to compel was not supported by affidavit. See Tex. Prop. Code Ann. 27.004(d)(2). On January 13, 2011, Anderson filed a verified supplemental plea in abatement. Anderson alleged that the Mainwarings failed to provide written notice concerning the newly alleged defects and complained the Mainwarings were attempting to circumvent the inspection and resolution procedure of the RCLA. Over Anderson’s objection that the lawsuit had been abated, the trial court granted the Mainwarings’ motion to compel discovery.”
After listening to both sides, the Court of Appeals offered this reasoning for their opinion: “The parties do not dispute that Anderson inspected the property before the Mainwarings alleged the existence of additional defects in their amended pleading, nor do the Mainwarings claim that Anderson has been given an opportunity to inspect the additional defects the Mainwarings identified in their amended pleadings. We conclude the trial court did not have the discretion to deny or lift the abatement until the Mainwarings established their compliance with the statute. In other words, the Mainwarings are required to provide Anderson a reasonable opportunity to inspect the additional defects identified by their amended pleading, which will allow Anderson the opportunity to cure or settle with respect to the newly identified defects.”
The Court of Appeals spoke directly on the issue of mandamus relief: “The Mainwarings contend that mandamus relief is not available because the trial court’s ruling does not prevent Anderson from making settlement offers during the discovery process. ‘An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments.’ In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). The failure to abate a case is typically not subject to mandamus. See In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002) (citing Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985)). In this case, however, the case was abated by operation of law. By ignoring the statutory abatement, the trial court interfered with the statutory procedure for developing and resolving construction defect claims. See In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522, 525 (Tex. App. Houston [14th Dist.] 1998, orig. proceeding) (An appeal provides an inadequate remedy for the trial court’s failure to observe automatic abatement pursuant to the RCLA.). The benefits of mandamus review are not outweighed by the detriments of mandamus review in this case.“
In conclusion, “The trial court had no discretion to compel discovery while the case was abated, and Anderson, who has been compelled to respond to discovery during a period the case was under an automatic abatement, has no adequate remedy on appeal. Accordingly, we conditionally grant the petition for writ of mandamus. The writ will issue only if the trial court fails to vacate its order of February 3, 2011, and fails to refrain from proceeding with the case until a motion to reinstate is filed that establishes compliance with the notice and inspection requirements of the Residential Construction Liability Act.”
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Protecting and Perfecting Your Mechanics Lien when the Property Owner Files Bankruptcy
June 19, 2023 —
William L. Porter - Porter Law GroupIntroduction/Overview of the Mechanics Lien Law
The California mechanics lien is a powerful tool for contractors, subcontractors and materials suppliers to secure payment of unpaid construction debts. A contractor, subcontractor or materials supplier is allowed to record a mechanics lien on real property, based on the value added to the property by the claimant during the construction process.
The recorded mechanics lien provides the claimant with legal right to force the sale of the improved real property and thereby obtain the funds necessary to pay the delinquent debt. Under the usual procedure, the first step is the recording of mechanics lien with County Recorder’s office in the County where the property is located. A lawsuit to foreclose on the lien must then be filed in the County Superior Court of that County, within ninty (90) days after the mechanics lien is recorded. The goal of the lawsuit is to obtain a judgment for foreclosure on the mechanics lien by way of a forced sale of the property. The net proceeds of the sale will be used to pay the unpaid construction debt secured by the recorded mechanics lien, assuming that sale proceeds exceed the amount of senior liens and encumbrances.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Client Alert: Disclosure of Plaintiff’s Status as Undocumented Alien to Prospective Jury Panel Grounds for Mistrial
February 05, 2015 —
R. Bryan Martin, Lawrence S. Zucker II, and Kristian B. Moriarty – Haight Brown & Bonesteel LLPIn Velasquez v. Centrome, Inc. (No. B247080, filed 1/30/2015) the Court of Appeal, Second District, held that a trial judge’s disclosure to the panel of prospective jurors of plaintiff’s status as an undocumented alien was prejudicial and grounds for a new trial.
Plaintiff, Wilfredo Velasquez, brought suit against defendant, Centrome, Inc., alleging personal injuries related to on-the-job exposure to diacetyl, which was purportedly distributed by Centrome.
Prior to trial, numerous motions in limine were filed with the trial court including a motion brought by Plaintiff to preclude Centrome from referring to or making any comments about Mr. Velasquez’s citizenship or immigration status. Plaintiff contended the information was not relevant (as no loss of earnings claim was asserted), and was substantially more prejudicial than probative. Defendant opposed the Motion arguing the information was relevant for the limited purpose of allowing expert testimony about Mr. Velasquez’s inability as an undocumented alien to participate in a lung transplant he claimed was needed. The Court deferred ruling on the motion.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
R. Bryan Martin,
Lawrence S. Zucker II and
Kristian B. Moriarty
Mr. Martin may be contacted at bmartin@hbblaw.com;
Mr. Zucker may be contacted at lzucker@hbblaw.com;
and Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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Using the Prevention Doctrine
April 22, 2019 —
David Erhart - Gordon & Rees Construction Law BlogThe following scenario happens regularly in the construction industry. A contractor on a project reaches out to a subcontractor to perform work. Excited about the prospect of performing the work, the subcontractor signs a contract and puts it nose to the grindstone. After dutifully completing the work the subcontractor turns to the contractor and asks to be paid. But, the contractor refuses saying that there is a provision in the subcontract that says the contractor is only obligated to pay the subcontractor if the contractor receives payment from the owner. So the contractor has completed the work, but has no money to show for it.
One potential remedy for a subcontractor in this situation is the use of the prevention doctrine. “Under the prevention doctrine, ‘if a promisor prevents or hinders fulfillment of a condition to his performance, the condition may be waived or excused.’” Cox v. SNAP, Inc., 859 F.3d 304, 308 (4th Cir. 2017) (quoting Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 7171, 725 (4th Cir. 2000)). “Put simply, ‘where a party to a contract is the cause of the failure of the performance of the obligation due him or her, that party cannot in any way take advantage of that failure.’” Haddon Hous Assocs v. United States, 711 F.3d 1330, 1338 (Fed. Cir. 2013) (quoting Restatement (Second) of Contracts § 245; Williston, § 39:4).
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David Erhart, Gordon & Rees Scully MansukhaniMr. Erhart may be contacted at
derhart@grsm.com
2018 Super Lawyers and Rising Stars!
July 18, 2018 —
Wilke, Fleury, Hoffelt, Gould & Birney, LLPWilke Fleury is thrilled to announce our 2018 Super Lawyers and Rising Stars! Twelve of our talented attorneys have been honored with the Super Lawyers and Rising Stars distinctions.
Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. The Super Lawyers list represents only five percent of lawyers in California and Rising Stars reflects 2.5% of the state’s up-and-coming lawyers.
Congratulations to Wilke Fleury’s 2018 Super Lawyers and Rising Stars!
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Wilke, Fleury, Hoffelt, Gould & Birney, LLP
