Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?
September 26, 2022 —
Ben Reeves - Snell & Wilmer Real Estate Litigation BlogRecent research I did on a case led me to the conclusion that Arizona law recognizes foreign litigation (i.e., a lawsuit filed outside of Arizona) as a justification for the recording of a lis pendens against real property located within Arizona. See
TWE Retirement Fund Trust v. Ream, 198 Ariz. 268 (Ct. App. 2000). Apparently, there’s some debate about whether foreign litigation can support a local lis pendens. See
Boca Petroco, Inc. v. Petroleum Realty II, 285 Ga. 487 (Ga. 2009). As noted in the TWE case, Arizona’s lis pendens statute
(A.R.S. 12-1191) does not discriminate between local or foreign “actions.” As such, if litigation is pending anywhere that affects Arizona real property, a lis pendens can (and probably should) be filed.
Reprinted courtesy of
Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com
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Feds OK $9B Houston Highway Project After Two-Year Pause
March 20, 2023 —
James Leggate - Engineering News-RecordThe Federal Highway Administration has agreed to let a $9-billion Texas highway reconstruction project proceed after a two-year pause over concerns linked to the project’s potential impact on communities along the route, including a lawsuit filed by Harris County to halt contracting, pending a new environmental impact review.
Reprinted courtesy of
James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
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AFL-CIO Joins in $10 Billion Infrastructure Plan
June 30, 2011 —
CDJ STAFFThe AFL-CIO has announced plans to generate up to $10 billion in funding for infrastructure development, training construction workers, and making buildings more energy efficient, pledging $20 million to retrofit buildings. Bloomberg News reports that union officials made the announcement in Chicago at the Clinton Global Initiative, releasing a statement from Richard Trumka, president of the union, “we, at the AFL-CIO, believe that together, with our partners in business and government, we can profitably invest significant resources to make America more competitive and energy efficient.” A foot injury prevented Mr. Trumka from attending the event.
The statement also quoted Mark Ayers, president of the Building and Construction Trades Department of the AFL-CIO, “the time is now to become intensely focused on the creation of jobs.”
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Harsh New Time Limits on Construction Defect Claims
April 26, 2011 —
Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq.A recent Colorado Supreme Court decision, Smith v. Executive Custom Homes, Inc., 230 P.3d 1186 (Colo. 2010), considerably shortens the time limit for bringing many construction defect lawsuits. Homeowners and homeowner associations risk losing the right to seek reimbursement from builders, developers and other construction professionals unless they carefully and quickly act upon discovery of evidence of any potential construction defect.
The Statute of Limitations for Construction Defect Claims
Colorado’s construction defect statute of limitations limits the time for homeowners and homeowners associations to bring lawsuits for construction defects against “construction professionals,” including developers, general contractors, builders, engineers, architects, other design professionals, inspectors and subcontractors. The statute requires homeowners and associations to file suit within two years “after the claim for relief arises.” A claim for relief “arises” when a homeowner or association discovers or reasonably should have discovered the physical manifestation of a construction defect.
The two-year time limitation applies to each construction defect separately, and will begin to run upon the appearance of a “manifestation” of a construction defect (which may include, for example, a condition as simple as a roof leak or drywall cracks), even if the homeowner or association does not know the cause of the apparent problem.
The Smith Opinion and its Effect on the Statute of Limitations
In Smith v. Executive Custom Homes, Inc., the plaintiff homeowner, Mrs. Smith, slipped on ice that had accumulated on her sidewalk because of a leaking gutter and suffered injury. When she first noticed the leak, she reported it to her property manager, who reported it to the builder. The builder attempted to repair the gutter, unbeknownst to Mrs. Smith, and she did not notice further problems until approximately one year after she first observed the leak, when she fell and suffered serious injury. She sued the builder within two years of her injury, but nearly three years after she first learned of the leak.
The Colorado Supreme Court dismissed Mrs. Smith’s claims as untimely and held that under the construction defect statute of limitations, the two-year period for suing for injuries due to construction defects begins when the homeowner first observes the physical manifestation of the defect, even if the resulting injury has not yet occurred. The court acknowledged that this ruling could result in “unfair results,” especially if a serious and unforeseeable injury occurs more than two years after the first time the homeowner noticed the problem, and as a result the victim is unable to seek redress from those responsible for the defect.
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Reprinted courtesy of Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq. of Sullan2, Sandgrund, Smith & Perczak, P.C., and they can be contacted through their web site.
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Colorado’s Need for Condos May Spark Construction Defect Law Reform
January 29, 2014 —
Beverley BevenFlorez-CDJ STAFFOn January 6th, Ed Sealover of the Denver Business Journal reported that Denver Mayor Michael Hancock has asked Colorado legislators “to pass a reform law that will make it easier to build condos without fear of getting sued.” Hancock is one of several mayors “to advocate for a construction defects reform proposal that was killed by Democrats in a committee last year.”
The problem, Sealover notes, is that only “2 percent of new housing in the state is multifamily units made for ownership—far lower than the 20 to 25 percent of such housing stock in other states represented by condos.”
There is some dissent as to whether reforming construction defect laws is the solution to the housing problem: “Taking away rights of homeowners to get shoddy construction fixed in what is likely the most expensive purchase in their life is not the way to fix the lack of affordable housing,” Lynea Hansen, spokeswoman for a group of construction defect homeowners told Sealover.
Furthermore, on January 7th, Sealover reported that Democrats “expressed skepticism” about a need to reform the laws, saying “they need more data on what is causing owner-occupied multifamily housing to be such a small part of the new housing market.” Moreover, Senate President-elect Morgan Carroll stated that she “wants to look into issues like why it is so hard to get insurance for building condominiums or examine why some areas of Colorado are seeing condo development and others aren’t.”
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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again that the Right to Repair Act is the Exclusive Remedy for Construction Defect Claims
June 05, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. - Chapman Glucksman Dean Roeb & Barger BulletinBackground
In Gillotti v. Stewart (April 26, 2017) 2017 WL 1488711, which was ordered to be published on May 18, 2017, the defendant grading subcontractor added soil over tree roots to level the driveway on the plaintiff homeowner’s sloped lot. The homeowner sued the grading subcontractor under the California Right to Repair Act (Civil Code §§ 895, et seq.) claiming that the subcontractor’s work damaged the trees.
After the jury found the subcontractor was not negligent, the trial court entered judgment in favor of the subcontractor. The homeowner appealed, arguing that the trial court improperly construed the Right to Repair Act as barring a common law negligence theory against the subcontractor and erred in failing to follow Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Third District Court of Appeal disagreed and affirmed the trial court’s judgment in favor of the subcontractor.
Impact
This is the second time the Third District Court of Appeal has held that Liberty Mutual (discussed below) was wrongly decided and held that the Right to Repair Act is the exclusive remedy for construction defect claims. The decision follows its holding in Elliott Homes, Inc. v. Superior Court (Hicks) (2016) 6 Cal.App.5th 333, in which the Court of Appeal held that the Right to Repair Act’s pre-litigation procedures apply when homeowners plead construction defect claims based on common law causes of action, as opposed to violations of the building standards set forth in the Right to Repair Act. Elliott is currently on hold at the California Supreme Court, pending the decision in McMillin Albany, LLC v. Superior Court (2015) 239 Cal.App.4th 1132, wherein Liberty Mutual was rejected for the first time by the Fifth District. CGDRB continues to follow developments regarding the much anticipated McMillin decision closely, as well as all related matters.
Discussion
The Right to Repair Act makes contractors and subcontractors not involved in home sales liable for construction defects only if the homeowner proves they negligently cause the violation in whole or part (Civil Code §§ 911(b), 936). As such, the trial court in Gillotti instructed the jury on negligence with respect to the grading subcontractor. The jury found that while the construction did violate some of the Right to Repair’s building standards alleged by the homeowner, the subcontractor was not negligent in anyway. After the jury verdict, the trial court found in favor of the grading subcontractor.
The homeowner moved for a judgment notwithstanding the verdict or a new trial on the grounds that the trial court improperly barred a common law negligence theory against the grading subcontractor. The trial court denied the motions on the grounds that “[t]he Right to Repair Act specifically provides that no other causes of action are allowed. See Civil Code § 943.” The trial court specifically noted that its decision conflicted with Liberty Mutual, in which the Fourth District Court of Appeal held that the Right to Repair Act does not eliminate common law rights and remedies where actual damage has occurred, stating that Liberty Mutual was wrongly decided and that the Liberty Mutual court was naïve in its assumptions regarding the legislative history of the Right to Repair Act.
In Gillotti, the Third District Court of Appeal stated that the Liberty Mutual court failed to analyze the language of Civil Code § 896, which “clearly and unequivocally expresses the legislative intent that the Act apply to all action seeking recovery of damages arising out of, or related to deficiencies in, residential construction, except as specifically set forth in the Act. The Act does not specifically except actions arising from actual damages. To the contrary, it authorizes recovery of damages, e.g., for ‘the reasonable cost of repairing and rectifying any damages resulting from the failure of the home to meet the standards....’ ([Civil Code] § 944).”
The Court also disagreed with Liberty Mutual’s view that because Civil Code §§ 931 and 943 acknowledge exceptions to the Right to Repair Act’s statutory remedies, the Act does not preclude common law claims for damages due to defects identified in the Act. The Court stated: “Neither list of exceptions, in section 943 or in section 931, includes common law causes of action such as negligence. If the Legislature had intended to make such a wide-ranging exception to the restrictive language of the first sentence of section 943, we would have expected it to do so expressly.”
Additionally, the Court of Appeal rejected the argument that Civil Code § 897 preserves a common law negligence claims for violation of standards not listed in Civil Code § 986. It explained that the section of Civil Code § 897, which provides, “The standards set forth in this chapter are intended to address every function or component of a structure,” expresses the legislative intent that the Right to Repair Act be all-encompassing. Anything inadvertently omitted is actionable under the Act if it causes damage. Any exceptions to the Act are made expressly through Civil Code §§ 931 and 934. The Court concluded in no uncertain terms that the Right to Repair Act precludes common law claims in cases for damages covered by the Act.
The homeowner further argued that she was not precluded from bringing a common law claim because a tree is not a “structure,” and therefore the alleged tree damage did not fall within the realm of the Right to Repair. The Court of Appeal also rejected this argument, holding that while the tree damage itself was not expressly covered, the act of adding soil to make the driveway level (which caused the damage) implicated the standards covered by the Right to Repair Act. The Court explained that since under the Act a “structure” includes “improvement located upon a lot or within a common area” (Civil Code § 895(a)), as the driveway was an improvement upon the lot, the claim was within the purview of the Right to Repair Act. As the soil, a component of the driveway, caused damage (to the trees), it was actionable under the Act.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Another Reason to Love Construction Mediation (Read: Why Mediation Works)
December 02, 2015 —
Christopher G. Hill – Construction Law MusingsI’ll bet you’re thinking by now that I have beaten the mediation drum to death and that I wouldn’t have any more praise for the process than I have heaped upon it here at this corner of the construction law “blawgosphere.” Well, just about every time I am involved with the process, whether acting in my capacity as a Virginia Supreme Court certified mediator, or as counsel to a client seeking to resolve a matter and move on with the business of making money, I become more convinced that mediation can work in even the most contentious of situations.
What do I mean by “work?” The obvious answer is that mediation “works” when the parties come up with a solution to their problem. In most instances, the solution involves money changing hands. After all, it is money that is usually the tangible and outwardly driving force behind a dispute. Money is also what a court or arbitrator (in most cases) will be awarding to one side or the other at the end of what is likely to be an expensive process.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Perovskite: The Super Solar Cells
July 23, 2014 —
Beverley BevenFlorez-CDJ STAFF“Embedding solar cells into buildings has always been more of a nice idea instead of an economical approach,” according to Gigaom, however they reported that a new kind of solar cell developed by a researcher at Oxford University might change things. Henry Snaith and his research team through experimentation discovered “perovskites,” which increase the amount of sunlight converted to electricity by 17 percent over other solar cells.
Solar cells currently used have, at times, proved inefficient. “Solar cells that won’t obstruct the view that a window offers historically have done poorly in converting much sunlight into electricity,” Gigaom reported. “Other types of solar cells have been too expensive to make. Plus, they won’t produce as much electricity when they line one side of a building rather than its rooftop, where they get sun for longer hours each day.”
Currently, Oxford PV, the perovskite start-up company, is pushing into commercializing its solar technology, and “is looking at opening an office in Silicon Valley.”
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