Fairfield Connecticut Building Expert Directory

HOA Foreclosure Excess Sale Proceeds Go to Owner

August 15, 2022 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
Over the last few years, the Arizona Court of Appeals wrestled with the question of who should receive the excess proceeds from a foreclosure sale. We’ve blogged about some these past unreported decisions here and here. Those decisions, somewhat inexplicably, required excess sale proceeds to be paid to senior creditors. As we noted at the time, these unreported (and non-precedential) decisions did not seem to make much sense in the context of debtor/creditor rights. Thankfully, a reported opinion finally sets the record straight. Excess sale proceeds should be paid downstream. In Tortosa Homeowners Assoc. v. Garcia, et al., No. 2 CA-CV 2021-0114 (Ct. App. Aug. 1, 2022), the Court of Appeals held that after the foreclosing lienholder is paid in full, then the excess sale proceeds should be paid to claimants in the order of their priority after the foreclosing lienholder. In other words, if a junior lienholder forecloses, then any creditors behind (i.e., junior to) the foreclosing creditor should be paid, and if all such creditors are paid, then the rest should be given to the owner. Creditors senior to the foreclosing creditor should not be paid anything from the foreclosure sale. This makes sense from a policy perspective, because the senior creditor retains its lien against the property and the bidder presumably took the presence of the senior lien into account when it made its bid for the foreclosed property. Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

January 23, 2023 — Robert A. Henry & Emily R. Parker - Snell & Wilmer Real Estate Litigation Blog
The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed. It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally. The case: Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied warranty of workmanship and habitability cannot, under any circumstances, be disclaimed or waived. From a practice perspective, the foregoing is likely all one needs to ultimately know. However, the majority opinion (authored by Justice Timmer) and the dissent (authored by Justice King, and joined by Justice Bolick) are in these authors’ opinions worth a read for those who want a better understanding of the contours of how “public policy” plays into the analysis of the enforceability of contract terms, especially in the real estate context and even more particularly in connection with contracts for the sale of new homes. The careful analysis of both the majority opinion and the dissent provides an excellent history of the implied warranty, the public policy behind it, and its scope and application in the context of competing public policies, most notably the freedom to contract. Reprinted courtesy of Robert A. Henry, Snell & Wilmer and Emily R. Parker, Snell & Wilmer Mr. Henry may be contacted at bhenry@swlaw.com Ms. Parker may be contacted at eparker@swlaw.com Read the court decision
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Reprinted courtesy of

Additional Insured Not Entitled to Coverage for Named Insured's Defective Work

September 02, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Court of Appeals for the Seventh Circuit determined there was no duty to defend or to indemnify the additional insured for the named insured's defective work. St. Paul Guardian Ins. Co., et al. v. Walsh Construction Co., 99 F. 4th 1035 (7th Cir. 2024). The City of Chicago contracted with Walsh Construction Company to manage the construction of a canopy and curtain wall system at O'Hare International Airport. Walsh entered into a contract with Carlo Steel Corporation, which in turn subcontracted with LB Steel, LLC to fabricate and install steel columns to support the wall and canopy. LB Steel listed Walsh as an additional insured in its commercial general liability policies. LB Steel's insurers were St. Paul, Travelers, and Charter Oak Fire Insurance Company. Several years into the project, the City discovered cracks in the welds of the steel columns and sued Walsh. Walsh, in turn, sued LB Steel under its subcontract. Walsh also asked LB Steel's insurers to defend it in the City's lawsuit, but they refused to do so. Walsh eventually secured a judgment against LB Steel, but LB Steel declared bankruptcy. Walsh then sued LB Steel's insurers to recover the costs of defending against the City's lawsuit and indemnification for any resulting losses. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Fire Damages Unfinished Hospital Tower at NYU Langone Medical Center

December 15, 2016 — Jeff Rubenstone – Engineering News-Record
A fire broke out Dec. 14 at a hospital tower under construction at NYU Langone Medical Center in New York City. The blaze sent a column of thick black smoke up through the Manhattan skyline. Read the court decision
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Reprinted courtesy of Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com

Do Engineers Owe a Duty to Third Parties?

June 10, 2015 — Craig Martin – Construction Contractor Advisor
A Texas Court of Appeals, in USA Walnut Creek, DST v. Terracon Consultants, Inc., recently ruled that an engineer owed a duty to the buyer of an apartment complex, even though the engineer had no contractual relationship with the buyer. This is an expansion of the duty professionals owe on construction projects and could signal a change in the law. In the case, Walnut Creek purchased a three year old apartment complex. A few years after taking possession, Walnut Creek noticed problems with the apartments, including cracking foundations, walls, breaking windows, and out of square door frames. Walnut Creek sued the developer and general contractor, alleging construction defects. The developer claimed that the engineer, Terracon, was at fault and Walnut Creek added Terracon to the lawsuit, asserting that Terracon was negligent in performing engineering services during construction. Terracon asked the court to dismiss the claim, arguing that it did not owe a duty to Walnut Creek. Walnut Creek in turn argued that engineers do owe a duty to subsequent owners. The trial court dismissed the case against the engineer and Walnut Creek appealed. The appellate court reversed the trial court, finding that the engineer did owe a duty to subsequent purchasers. The court seemed persuaded by the allegations that the engineer actually created the construction defects which were the basis for the litigation. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Civil RICO Case Against Johnny Doc Is Challenging

October 20, 2016 — Wally Zimolong – Supplemental Conditions
News that a non-union contractor had filed a Lawsuit against IBEW Local 98 and its leader, John Dougherty, made headlines this week. While making fodder for local media, the plaintiffs must bound several legal hurdles before IBEW Local 98 and “Johnny Doc” face any threat of liability. Background on RICO The lawsuit was filed under a set of laws known as the Racketeer Influenced and Corrupt Organizations Act (RICO). I have written about RICO’s impact on labor unions on this blog before and predicted that recent federal court cases made RICO claims against more viable. RICO is a Nixon era set of laws that were originally passed to combat organized crime. There is both a civil and criminal component to RICO. (Interestingly, the RICO act remained relatively dormant until then U.S. Attorney Rudy Giuliani began effectively using it to prosecute the mob in the 1980’s.) Although recent decisions have made RICO claims against unions more viable, any RICO claim is still challenging. Indeed, some courts require a plaintiff in civil RICO cases to file a separate RICO case statement detailing its allegations. RICO claims are powerful. Some have called RICO claims a “thermonuclear” litigation device because the law permits the award of trebel (triple) damages and attorneys fees. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Gardeners in the City of the Future: An Interview with Eric Baczuk

July 08, 2019 — Aarni Heiskanen - AEC Business
I had the pleasure of interviewing Eric Baczuk, Designer at Google. We discuss his views on the future urban experience and design. We also touch on Sidewalk Labs of which Eric was a founding team member. What are you working on currently? I lead a design team imagining future of communication and thinking about possibilities for what–if anything–might replace the smartphone in our daily lives. What could be the next affordance or device that could offer us a more seamless interface with the digital world? Can you be more specific about the interfaces? It’s really just imagining a future with digital interfaces that might be a bit more natural and more humane than what is currently available. In many ways, I think the phone has monopolized social life. You see people standing on the street, for example, waiting for the bus, and 99 percent will have their noses glued to their phones. I think it’s quite anti-social, and in some ways, prevents the friendly, serendipitous encounters that used to be so characteristic of urban living. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

Sometimes a Reminder is in Order. . .

June 21, 2021 — Christopher G. Hill - Construction Law Musings
Recently, I was talking with my friend Matt Hundley about a recent case he had in the Charlottesville, VA Circuit Court. It was a relatively straightforward (or so he and I would have thought) breach of contract matter involving a fixed price contract between his (and an associate of his Laura Hooe) client James River Stucco and the Montecello Overlook Owners’ Association. I believe that you will see the reason for the title of the post once you hear the facts and read the opinion. In James River Stucco, Inc. v. Monticello Overlook Owners’ Ass’n, the Court considered Janes River Stucco’s Motion for Summary Judgment countering two arguments made by the Association. The first Association argument was that the word “employ” in the contract meant that James River Stucco was required to use its own forces (as opposed to subcontractors) to perform the work. The second argument was that James River overcharged for the work. This second argument was made without any allegation of fraud or that the work was not 100% performed. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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