FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Fraud and Construction Contracts- Like Oil and Water?

December 31, 2014 — Christopher G. Hill – Construction Law Musings
We have discussed the interaction of fraud and breach of contract actions on occasion here at Construction Law Musings. In most cases the two do not mix. Between the economic loss rule and the general desire of Virginia courts to keep contract actions and tort actions separate, most of the time it is impossible to make a fraud action relating to a contract stick in a construction context. The Virginia Supreme Court recently confirmed this fraud/contract distinction. As discussed in the Virginia Real Estate Land Use & Construction Law blog (Thanks Heidi!), Station No. 2, LLC v. Lynch, et. al. strongly re-states the Virginia courts’ strong reluctance to allow a breach of contract turn into a claim for fraud. Without re-iterating the great discussion of the facts of the case found in the post by Heidi Meizner, suffice it to say that certain contractual promises between and among the parties were not fulfilled much to Station 2, LLC’s detriment. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Arizona Supreme Court Confirms Eight-Year Limit on Construction Defect Lawsuits

July 18, 2011 — CDJ STAFF

Acting on the case of Albano v. Shea Homes Ltd. Partnership, the Arizona Supreme Court has ruled that Arizona’s eight-year statute of repose applies. The case was referred to the court by the Ninth Circuit Court of Appeals which had asked for a clarification of Arizona law. The case focused on three questions:



1. Does the filing of a motion for class certification in an Arizona court toll the statute of limitations for individuals, who are included within the class, to file individual causes of action involving the same defendants and the same subject matter?2. If so, does this class-action tolling doctrine apply to statutes of repose, and more specifically, to the statute of repose for construction defects set forth in Arizona Revised Statutes ("A.R.S.") § 12-552?3. If the doctrine applies to statutes of repose, and specifically § 12-552, may a court weigh the equities of the case in determining whether, and to what extent, an action is tolled?



The litigation at hand has a lengthy history, starting with a case referred to as “Hoffman” in 2003. The Albano plaintiffs were not able to join in Hoffman, and they filed their own lawsuit in 2006. An additional lawsuit was filed by the Albano plaintiffs in 2007. The courts decided that the Albano plaintiffs’ lawsuit was untimely.



The Arizona Supreme Court concluded that the statute of repose was the appropriate standard for this case. They noted that “the eight-year statute of repose period began to run on November 6, 1997, the date of the Town of Gilbert’s final inspection. Albano II was filed on November 5, 2007.”



The court found that the plaintiffs had waited too long for start their suit. As a result, they found it unnecessary to answer the first or third questions. Justice A. John Pelander of the Arizona Supreme Court wrote the opinion, dated June 30, 2011.

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Include Contract Clauses for Protection Against Ever-Evolving Construction Challenges

May 30, 2022 — Michael Henry & Kevin J. Riexinger - Construction Executive
The first quarter of 2022 provided a valuable glimpse into some of the major issues the construction industry can expect to continue impacting jobsites for the rest of the year. Early in the pandemic, construction was not immune from the shut-downs that swept across market sectors. Workers were staying home to shield themselves and their families from the COVID-19 virus (and variants). This caused delays with construction projects and failures to meet negotiated benchmarks or deadlines. Contractors were left to wonder whether they remained obligated to perform under their contracts, or whether COVID-19 allowed them to invoke force majeure clauses. Over the past two years, there has been much debate about whether force majeure clauses encompass COVID-19 risks. Traditionally, force majeure is only invoked for significant weather events or natural disasters. Unsurprisingly, outcomes of legal actions regarding COVID-19 and force majeure varied by state and by contract. It didn’t take long for contractors to seek a more predictable and certain solution. Reprinted courtesy of Michael Henry & Kevin J. Riexinger, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Riexinger may be contacted at kriexinger@gllawgroup.com Mr. Henry may be contacted at MbHenry@tcco.com Read the court decision
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Pennsylvania Supreme Court’s Ruling On Certificates Of Merit And “Gist Of Action” May Make It More Difficult For An Architect Or Engineer To Seek An Early Dismissal

January 07, 2015 — Jerrold P. Anders and Michael W. Jervis - White and Williams LLP
In Bruno v. Erie Ins. Co., the Pennsylvania Supreme Court clarified the gist of the action doctrine that distinguishes between tort and contract claims. In doing this, the Court also ruled that a Certificate of Merit in a professional liability claim is necessary only if the plaintiff is in a direct client relationship with the licensed professional. This clarification of the Certificate of Merit requirement may limit the ability of architects and engineers to obtain an early dismissal in lawsuits. Bruno v. Erie Ins. Co. involves a common scenario. The Brunos filed a claim with their homeowners’ insurer after discovering mold in their home during remodeling. The policy included an endorsement providing coverage for mold. As part of the claim adjustment, Erie hired an engineer to inspect the mold and to provide an opinion on its severity to determine the extent of remediation required. The engineer hired by Erie reported to Mr. Bruno that the mold was harmless, that concern over health problems due to mold was merely a “media frenzy,” and that the Brunos should continue with their renovations. Reprinted courtesy of Jerrold P. Anders, White and Williams LLP and Michael W. Jervis, White and Williams LLP Mr. Anders may be contacted at andersj@whiteandwilliams.com Mr. Jervis may be contacted at jervism@whiteandwilliams.com Read the court decision
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A Guide to California’s Changes to Civil Discovery Rules

April 29, 2024 — Lewis Brisbois Newsroom
San Diego, Calif. (April 10, 2024) - California legislators have changed the rules of discovery in civil cases through the passage of amendments to Code of Civil Procedure sections 2016.090 and 2023.050, effective January 1, 2024. Section 2016.090 creates a new set of rules for civil litigators in cases filed on or after January 1, 2024, which permits any party to the litigation to demand initial disclosures be provided within 60-days. Such a demand can be made any time after a party has filed a responsive pleading, including a demurrer or motion to strike. Notably, this rule requires production of all information relevant to any causes of action that are pled at the time of the demand, meaning the parties may be required to disclose information related to claims that are being challenged on demurrer or a motion to strike, such as claims for punitive damages. This statute is only implicated when one of the parties to the action makes a demand and may be modified by stipulation of the parties. Read the court decision
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Reprinted courtesy of Lewis Brisbois

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Consider Manner In Which Loan Agreement (Promissory Note) Is Drafted

March 02, 2020 — David Adelstein - Florida Construction Legal Updates
Consider who you loan money too and, perhaps more importantly, the manner in which your loan agreements (promissory notes) are drafted. By way of example, in what appears to be a failed construction project in Conrad FLB Management, LLC v. Diamond Blue International, Inc., 44 Fla. L. Weekly D2897a (Fla. 3d DCA 2019), a group of lenders lent money to a limited liability company (“Company”) in connection with the development of a project. Promissory notes were executed by Company and executed by its managing member as a representative of Company, and not in a personal capacity. Company, however, did not own the project. Rather, an affiliated entity owned the project (“Affiliated Entity”). Affiliated Entity had the same managing member as Company. Once the Company received the loan proceeds, it transferred the money to Affiliated Entity, presumably for purposes of the project. The loans were not repaid and the lenders sued Company, Affiliated Entity, and its managing member, in a personal capacity. The lenders claimed they were all jointly liable under the promissory notes. Although the trial court granted summary judgment in favor of the lenders, this was reversed on appeal as to the Affiliated Entity and the managing member because there was a factual issue as to whether they should be bound by the note executed on behalf of Company. First, Florida Statute s. 673.4011(1) provides that “a person is not liable on a promissory note unless either (a) the person signed the note, or (b) the person is represented by an agent who signed the note.” Conrad FLB Management, LLC, supra. Affiliated Entity is a separate entity and did not execute the note. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Capitol View-Corridor Restrictions Affect Massing of Austin’s Tallest Tower

October 17, 2023 — David M. Brown - Engineering News-Record
The stepped-back profile of a 66-story skyscraper in Austin, which will be the state capital’s tallest building when completed this fall, is a consequence of the city's height and massing limits to keep the view corridor to the capitol's dome unblocked. Reprinted courtesy of David M. Brown, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Employee Handbooks—Your First Line of Defense

April 15, 2015 — Craig Martin – Construction Contractor Advisor
This spring has been busy with questions about employee handbooks. Perhaps it is because the NLRB just issued a directive on the legality of various clauses usually contained in handbooks. Or perhaps it’s because employers, including construction companies, are realizing the importance that handbooks play in defending against claims of harassment. Employee Handbooks Are Important Employee handbooks are an employer’s first line of defense in claims of harassment. A key provision to any employee handbook is an anti-harassment provision that includes:

• A definition of harassment;
• The process to complain about harassment;
• A commitment to investigate all claims of harassment; and
• An assurance that no one will be retaliated against for reporting harassment.

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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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