“For What It’s Worth”
October 21, 2024 —
Daniel Lund III - LexologyThe legal doctrine of quantum meruit is essentially referring to recovering “for what it’s worth,” incorporating the Latin phrase for “as much as one has deserved.”
Quantum meruit recovery occurs when there is no contract between parties for the particular item for which recovery is sought. Hence, quantum meruit recovery is generally a means of last resort to endeavor to make oneself whole.
So, it was for a subcontractor seeking nearly $14,000,000 for work it performed on a construction project in Portsmouth, New Hampshire. The subcontractor sued on contract as well as quantum meruit/unjust enrichment. The court initially dismissed the quantum meruit/unjust enrichment claims – because there was a contract claim – whereupon the contract claim was dismissed on summary judgment: the subcontractor failed to timely submit change proposals and, consequently, “lost contract remedies available to recover amounts it sought in the change proposals.”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
¡AI Caramba!
January 07, 2025 —
Daniel Lund III - LexologyYou can’t make this up.
That’s what a federal judge in Texas told an attorney whom it was sanctioning for impermissible reliance on artificial intelligence in preparing a brief to the court.
“Pending before the court is the question of whether Plaintiff's counsel… should be sanctioned for submitting a response brief to the court that includes case cites generated by artificial intelligence that refer to nonexistent cases as well as to nonexistent quotations.”
Counsel for the defendant in the case – pursuing summary judgment for a tire manufacturer in a wrongful termination lawsuit – pointed up in a reply brief that the opposition brief of the plaintiff cited two purported – and as it turned out, nonexistent – unpublished decisions: Roca v. King's Creek Plantation, LLC, 500 F. App'x 273, 276 (5th Cir. 2012) and Beets v. Texas Instruments, Inc., No. 94-10034, 1994 WL 714026, at *3 (5th Cir. Dec. 16, 1994), and quotations from as many as six other apparently-existing cases but which were unable to be found within the reported decisions.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Gloria Gaynor Sues Contractor over Defective Deck Construction
October 22, 2013 —
CDJ STAFFGloria Gaynor, known for her 1978 disco hit, “I Will Survive” is suing the firm that renovated her second-floor deck, alleging that the work lead to water intrusion into her home. Ms. Gaynor also accuses the company of consumer fraud, alleging that Diaz Landscape Design & Tree Service LLC lacked registration as a home improvement contractor and failed to obtain a building permit for the structure.
Ms. Gaynor paid about $38,000 for the replacement of her deck and other renovations to her property in 2007. Subsequently, the singer noticed “ponding of water on the deck, water damage to wood sills and supports, and the formation of mold,” according to the lawsuit. Diaz Landscape attempted repairs, but “the problems persisted and continue to persist causing further damage.”
The lawsuit claims that the cost of replacing the defective deck construction would cost about $120,000.
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ABC Chapter President Comments on Miami Condo Collapse
July 11, 2021 —
Rachel O'Connell - Construction ExecutivePeter Dyga, ABC Florida East Coast Chapter president, has been one of the go-to experts in the aftermath of the shocking collapse of the Champlain Towers South condo building in Surfside, Florida.
As of publication, the death toll stands at 46 people and another 94 remain unaccounted for. On July 7, rescue officials announced the search would transition to a recovery operation at midnight on July 8, following the demolition of the remaining building over the July 4 weekend.
Dyga sat down with Construction Executive to discuss the critical nature of this tragedy and to review potential next steps.
Construction Executive: This incident has become national news. Why do you think the building collapse has garnered so much attention?
Peter Dyga: Because of the enormity of the tragedy and because it’s so uncommon for a building to collapse on its own.
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Rachel O'Connell, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Covenant of Good Faith and Fair Dealing Applied to Pass-Through Agreements
June 19, 2023 —
Scott D. Cessar - Construction ExecutivePass-through claims are claims by a party that has suffered damages but does not have a contractual relationship with the entity that caused the damages. In the construction industry, subcontractors commonly have claims for additional costs based on actions or inactions by the owner. However, since the subcontractor is not in privity of contract with the owner, it has no direct cause of action against the owner other than, perhaps, on a nongovernment project, a lien claim. In such cases, subcontractors may seek to pass the claim through the general contractor, who is in privity with the owner, to the owner.
Indeed, many construction contracts require the subcontractor, in such cases of owner-caused damages, to pass the claim through the general contractor to the owner. And since the harm visited on a subcontractor by the owner usually also affected the general contractor, the subcontractor’s claim is packaged together with the general contractor’s claim, which is usually greater, for presentation to the owner and, if not resolved, litigation with the owner.
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Scott D. Cessar, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Idaho District Court Affirms Its Role as the Gatekeeper of Expert Testimony
March 15, 2021 —
Melissa Kenney - The Subrogation SpecialistMany subrogation claims involving fire losses rely heavily on expert testimony. Expert testimony is admissible under Federal Rule of Evidence 702 if it is both relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whose standard has been incorporated into Federal Rule of Evidence 702, the Supreme Court instructed federal trial courts to act as a “gatekeeper” of expert testimony, giving them the power to exclude expert testimony that is not supported by sufficient evidence. In Maria Fernanda Elosu and Robert Luis Brace v. Middlefork Ranch Incorporated, Civil Case No. 1:19-cv-00267-DCN, 2021 U.S. Dist. LEXIS 14449 (D. Idaho Jan. 22, 2021) (Brace), the United States District Court for the District of Idaho exercised its gatekeeper role when it granted in part and denied in part the defendant’s motion to exclude expert testimony pursuant to Daubert and Federal Rule of Evidence 702.
Brace, involved a fire at a vacation cabin in McCall, Idaho. The cabin, owned by Maria Elosu (Elosu) and Robert Brace (Brace and collectively with Elosu, Plaintiffs) was part of a homeowner’s association called Middlefork Ranch, Incorporated (MFR). The cabin had a “wrap around” deck with a propane-fired refrigerator on the north side. On the day before the fire, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Plaintiffs used rags to clean up excess oil from the deck and an MFR employee changed the propane on the refrigerator and relit the pilot light. At 4:00 p.m., a fire started in or around the cabin while no one was home. The fire was discovered by a group of contractors who testified that the fire was isolated to the east side of the cabin when they first arrived. Importantly, one witness testified that there was no fire and no flames around the propane-fired refrigerator. The fire destroyed the cabin and the contents within.
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Melissa Kenney, White and Williams LLPMs. Kenney may be contacted at
kenneyme@whiteandwilliams.com
Summarizing Changes to NEPA in the Fiscal Responsibility Act (P.L. 118-5)
September 05, 2023 —
Anthony B. Cavender & Marcus Manca - Gravel2Gavel Construction & Real Estate Law BlogThe National Environmental Policy Act (NEPA) was signed into law on January 1, 1970, and it has rarely been amended or revised since then. NEPA is basically a procedural statute which requires Federal permitting authorities, before a major federal project is approved, to carefully consider the significant environmental consequences of the proposed federal action. NEPA has been employed to conduct a probing review of wide variety of federal projects and actions, and the President’s Council on Environmental Quality (CEQ) has promulgated a comprehensive set of rules and guidance documents that must be followed or consulted. (See 40 CFR Section 1500 et seq.) The first set of NEPA rules was issued in 1978, and very little was done to bring the rules up to date until 2020. The first phase of this review has been completed, and a second and final phase will soon be underway. The NEPA review process includes the use of “categorical exclusions,” environmental assessments and environmental impact statements to measure the environmental impact of a proposed project. Over time, the rules and their implementation and judicial interpretation have become ever more complex, and an enormous body of NEPA case law has resulted.
The recent Congressional debt limit deliberations provided an opportunity to revise some of these procedures, and the Fiscal Responsibility Act, signed into law on June 3, 2023, included at Title III, a section devoted to “Permitting Reform.”
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Anthony B. Cavender, Pillsbury and
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“Details Matter” is the Foundation in a Texas Construction Defect Suit
March 01, 2012 —
CDJ STAFFThe Court of Appeals of Texas has ruled in the case of Barzoukas v. Foundation Design. Mr. Barzoukas contracted with Heights Development to build a house. He subsequently sued Heights Developments and “numerous other defendants who participated in the construction of his house.” Barzoukas eventually settled with all but two defendants, one who went bankrupt and Foundation Design, the defendant in this case. In the earlier phase, Barzoukas made claims of “negligence, negligent misrepresentation, fraud, fraudulent inducement, conspiracy, and exemplary damages in connection with the foundation.”
Foundation Design had been hired to install 15-foot piers to support the foundation. The engineer of record, Larry Smith, sent a letter to Heights Development noting that they had encountered hard clay stone when drilling. Smith changed the specifications to 12-foot piers. Initially, the City of Houston called a halt to work on the home when an inspector concluded that the piers were too shallow. Heights Development later convinced the city to allow work to continue. Subsequently, experts concluded that the piers were too shallow.
Foundation Design filed a motion for summary judgment. The trial court granted this, “without specifying the basis for its ruling.” Barzoukas contends the court was in error. Foundation Design contends that “Barzoukas failed to proffer competent evidence establishing that their conduct proximately caused damages.” Further, they did not feel that Smith’s letter gave “rise to viable claims for fraud and fraudulent inducement.”
One problem the court had was a lack of evidence. The court noted that “the purported subcontract is entirely missing” in the pleadings. The court has no contract between Bazourkas and Heights Development, nor one between Heights Development and either Foundation Design or Smith. The court underscored the importance of this, writing, “details matter.” They found that “the details are largely missing here.” Without the contract, the court found it impossible to determine if “Smith or an entity related to him agreed to indemnify Heights Development for damages arising from Smith’s negligent performance.”
As the material facts are in dispute, the appeals court found that there were no grounds for a summary judgment in the case. “Pointing to the existence of a contract between Heights Development and Barzoukas, or to the existence of a subcontract, is the beginning of the analysis ? not the end.”
Foundation Design and Smith also claimed that Barzoukas’s expert did not proffer competent evidence and that the expert’s opinions were conclusory. The trial court did not rule on these claims and the appeals court has rejected them.
Finally, Barzoukas made a claim that the trial court should not have rejected his argument of fraud and fraudulent inducement. Here, however, the appeals court upheld the decision of the lower court. “Barzoukas did not present evidence supporting an inference that Smith or Foundation Design made a purposeful misrepresentation.
The court remanded the case to the trial court for reconsideration. One member of the panel, Judge Charles Seymore, upheld the entire decision of the trial court. He dissented with the majority, finding that the economic loss rule foreclosed the claim of negligence.
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