Cambridge Massachusetts Building Expert Directory

Professional Liability Alert: Joint Client Can't Claim Privilege For Communications With Attorney Sued By Another Joint Client

February 05, 2015 — David W. Evans and Stephen J. Squillario – Haight Brown & Bonesteel LLP
In Anten v. Superior Court (No. B258437 – Filed 1/30/2015), the Second Appellate District held that when joint clients do not sue each other, but one of them sues their former attorney, the nonsuing client cannot prevent the parties to the malpractice suit from discovering or introducing otherwise privileged attorney-client communications made in the course of the joint representation. Under California Evidence Code §958, in lawsuits between an attorney and a client based on an alleged breach of a duty arising from their attorney-client relationship, communications relevant to the alleged breach are not protected by the attorney-client privilege. Similarly, Evidence Code §962 provides that if multiple clients retain or consult with an attorney on a matter of common interest and the joint clients later sue each other, then the communications between either client and the attorney made in the course of that relationship are not privileged in the suit between the clients. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com; Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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Construction Payment Remedies: You May be Able to Skate by, But Why?

April 06, 2016 — Garret Murai – California Construction Law Blog
My grandfather used to say that “anything worth doing, is worth doing well.” It wasn’t until later that I learned the quote wasn’t his, but a quote from Philip Stanhope the Fourth Earl of Chesterfield, who said in his posthumously published and quite lengthily titled Letters to His Son on the Art of Becoming a Man of the World and a Gentleman, that “whatever is worth doing at all, is worth doing well.” I’m not sure where my grandfather, who wasn’t a man of letters, picked up this quote, but I like his version better. While “anything worth doing, is worth doing well” can be said to apply to a wide variety of things in life, including living itself, it applies equally to the world of construction payment remedies, which have requirements that are both detailed and deadline driven. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Regions Where Residential Construction Should Boom in 2014

January 13, 2014 — CDJ STAFF
Construction Digital reports that five regions should see a boom in residential construction in 2014, based on research from McGraw-Hill Construction. According to the report, the rise in residential construction is likely to be as much as 26% in single-family housing, with an 11% rise expected in multi-family housing. The regions that should benefit the most from these are Houston, Atlanta, Phoenix, Denver, and Los Angeles. Cities that want to be in on the 2014 boom are advised to “lower permit fees,” offer “construction grants and loans,” and to get the word out to contractors that the area is going to provide a favorable environment for contractors. Read the court decision
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Watch Your Step – Playing Golf on an Outdoor Course Necessarily Encompasses Risk of Encountering Irregularities in the Ground Surface

May 08, 2023 — Kaitlyn A. Jensen & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
On April 27, 2023, the First District Court of Appeal issued an opinion in Walter Wellsfry, et al. v. Ocean Colony Partners, LLC (A165175, April 27, 2023) affirming summary judgment for a golf course owner on the grounds that the injured golfer’s lawsuit was barred by the primary assumption of risk doctrine. In doing so, the Court of Appeal found that outdoor golfers assume the risks associated with the topographical features of the course, including the risk of stepping on an inconspicuous tree root. Recreational golfer Walter Wellsfry was walking from a tee box back to his golf cart when he allegedly stepped on a small tree root concealed by grass, causing him to fall into his golf cart in immediate pain. The ground consisted of mixed terrain, including a combination of grass, dirt, and sand. The tree root was estimated to be approximately 1.5 inches high by 1.5 inches wide. Believing he may have only sprained an ankle, Wellsfry continued the course and reported the incident to management. He later sued the golf course owner Ocean Colony Partners for negligence, claiming that the tree root was a “hidden obstruction” creating an unreasonable risk of harm to anyone who traversed the area. Reprinted courtesy of Kaitlyn A. Jensen, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Mr. Jensen may be contacted at kjensen@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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U.K. Puts Tax on Developers to Fund Safer Apartment Blocks

March 08, 2021 — Emily Ashton & Olivia Konotey-Ahulu - Bloomberg
The U.K. announced an extra 3.5 billion pounds ($4.8 billion) toward the cost of stripping dangerous cladding from apartment blocks in England, with a new tax on developers from next year to help cover the costs. Housing Secretary Robert Jenrick said the new cash will add to a previously announced 1.6 billion-pound “safety fund” to remove the material, which was blamed for the deaths of 72 people in a catastrophic fire at London’s Grenfell Tower in 2017. A new tax will be introduced for U.K. residential developers in 2022 to raise at least 2 billion pounds over the next decade to ensure homebuilders “make a fair contribution” to solving the problem, Jenrick told the House of Commons on Wednesday. Reprinted courtesy of Emily Ashton, Bloomberg and Olivia Konotey-Ahulu, Bloomberg Read the court decision
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Quick Note: Attorney’s Fees on Attorney’s Fees

June 13, 2022 — David Adelstein - Florida Construction Legal Updates
In a recent case, the appellate court held that the attorney’s fees provision in the contract was NOT broad enough to entitle the prevailing party to recover attorney’s fees for litigating the amount of attorney’s fees. This is known as “fees on fees” which is when you can recover your prevailing party attorney’s fees when you are fighting over the quantum that should be awarded to you as the prevailing party. The attorney’s fees provision at-issue stated: “In any lawsuit to enforce the Lease or under applicable law, the party in whose favor a judgment or decree has been rendered may recover its reasonable court costs including attorney’s fees from the non-prevailing party.” Language similar to this language can be found in many contracts as a prevailing party attorney’s fees provision. However, this provision was NOT broad enough to recover “fees on fees.” As explained in this article, if this is a consideration, you can negotiate or include this provision into your construction contract by expanding the scope of the prevailing party attorney’s fees provision to clarify that it entitles the prevailing party to recover attorney’s fees in litigating the amount of attorney’s fees. 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

Neighbor Allowed to Remove Tree Roots on Her Property That Supported Adjoining Landowners’ Two Large Trees With Legal Immunity

July 14, 2016 — Paul R. Cressman, Jr. – Ahlers & Cressman PLLC Blog
A recent Washington Court of Appeals opinion addressed the rights of a neighbor to destroy roots and branches on her property that belonged to trees located on an adjoining landowner’s property.[1] Mustoe had two large Douglas-fir trees located entirely on her property, about two and one-half feet from the property line with her neighbor Ma. Ma caused a ditch to be dug on her property along the border with Mustoe’s lot. The ditch was 18-20 inches deep. In the process, Ma exposed and removed the trees’ roots, leaving them to extend only three-four feet from the trunks of the trees. This resulted in a loss of nearly half of the trees’ roots, all from the south side, exposing them to southerly winds with no support. The damaged trees posed a high risk of falling on Mustoe’s home. The landscape value of the trees was estimated to be $16,418. The cost of their removal was estimated to be $3,913. Mustoe filed suit against Ma asserting that Ma had negligently, recklessly, and intentionally excavated and damaged her trees, along with other property, and also sought emotional distress damages. The trial court dismissed Mustoe’s suit. The Court of Appeals affirmed. Read the court decision
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Reprinted courtesy of Paul R. Cressman, Jr., Ahlers & Cressman PLLC
Mr. Cressman may be contacted at pcressman@ac-lawyers.com

Courthouse Reporter Series - How to Avoid Having Your COVID-19 Expert Stricken

September 25, 2023 — Andrew G. Vicknair - The Dispute Resolver
Expert witnesses play a key role in litigation, especially when dealing with construction issues. The testimony of an expert at trial can be a deciding factor in helping persuade a jury or judge in your client’s favor. Thus, it is imperative that your expert’s opinion meet the proper legal standard. In Polaris Engineering, Inc. v. Texas International Terminals, LTD, the United States District Court for the Southern District of Texas reiterated the importance of an expert’s opinion complying with the applicable legal standards governing expert testimony. 2023 U.S. Dist. LEXIS 109413 (S.D. Tex. June 26, 2023). The legal standard at issue in Polaris was Rule 702 of the Federal Rules of Evidence. Polaris involved a suit arising from a contract related to the design, engineering, and construction of a terminal and crude-oil processing facility for Texas International Terminals in Galveston, Texas. There were four separate contracts that governed the Project. One of the contracts governed the creation of the 50,000 barrel per day crude processing unit. Because the parties wanted to move quickly, they agreed to certain assumptions about the Project and specifically designed a change order process whereby the price and schedule could be adjusted if the agreed upon assumptions were incorrect. Read the court decision
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Reprinted courtesy of Andrew G. Vicknair, D'Arcy Vicknair, LLC
Mr. Vicknair may be contacted at agv@darcyvicknair.com

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