Unjust Enrichment Claims When There Is No Binding Contract
December 04, 2023 —
David Adelstein - Florida Construction Legal UpdatesA recent appellate opinion starts off, “This is a typical South Florida construction dispute.” (See case citation at the bottom) Let’s see, is it? No. It’s a garden variety payment dispute where the parties did NOT have a binding contract. Why? That’s for a different day (because the smart practice is ALWAYS to have a contract!) but it touches on the equitable, unjust enrichment claim. And it touches on competing unjust enrichment claims and the apportionment of those claims. In other words, can both parties be right on their unjust enrichment claims?
An owner hired a general contractor for home renovations. Work started but the relationship soured and the general contractor did not complete the work. The general contractor filed a payment dispute against the owner based on unpaid invoices. It pled alternative theories of recovery against the owner: breach of contract and unjust enrichment. The owner filed a counterclaim against the general contractor for the same claims. During the non-jury trial, the general contractor presented unpaid invoices along with testimony that the invoices represented the value of services rendered. The owner presented evidence of the completion of work damages.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Toolbox Talk Series Recap – Arbitration Motion Practice
August 07, 2023 —
Michael Zehner - The Dispute ResolverIn the June 22, 2023 edition of the Toolbox Talk Series,
Adrian Bastianelli, Peckar & Abramson, P.C., and
Brian Cashmere, Williams Mullen, moderated by Jennifer Millender of the American Arbitration Association (“AAA”), discussed motion practice in arbitration. Specifically, they offered advice on how to choose the right issue for a motion, how to get approval for a motion, how to write the motion, and how to get the arbitrator to grant it. They also discussed the pros and cons of motion writing in arbitration settings.
1. How to choose the “right issue” for a motion in arbitration
The panel discussed what type of issues can, or should, be brought up in a motion in arbitration. Cashmere stated that a clear and concise issue is best for this type of review. For example, statute of limitations, notice, or contract interpretation issues may make great summary judgment or partial summary judgment motions. Essentially, an issue that the arbitrator may resolve via primarily a question of law is more likely to succeed. Bastianelli warned against submitting just any “available” motion, as the practice may turn the arbitrator against you. Both panelists mentioned the need to consider strategy before filing a motion—ask, “how will filing this motion help or hurt reachingArbi final resolution.” Cashmere noted that sometimes the threat of bringing the issue to a hearing can put pressure on the adverse party in a way that is favorable to your client’s goals; possibly even more so than actually submitting the issue.
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Michael Zehner, BBG Construction LawMr. Zehner may be contacted at
mzehner@bbglaw.com
Construction Defect Claim Did Not Harm Homeowner, Court Rules
September 30, 2011 —
CDJ STAFFThe Minnesota Court of Appeals has ruled in Creswell v. Estate of Howe, a case in which a woman bought a home and then sued the seller’s estate, both sets of real estate agents, and the homeowner’s association over construction defects. A district court ruled against her, granting summary judgment to the other parties.
After buying a townhome “as is,” Catherine Creswell claims to have shared a thought with her agent that the homeowners association was, in the words of her agent, “trying to hide something.” Later, Creswell found that a few days before her closing, the board had discussed problems with “roofs, siding and soundproofing of the townhomes.” The court noted that “it was clear from the documents that appellant [Creswell] received that the association had known about various construction defects for many years, some of which affected [her] unit.”
Creswell initially sued the estate, the man who negotiated the sale for his mother’s estate, the real estate companies and the agents involved, the homeowners association, and four board members. Later she sued for punitive damages, dropped a claim for interference with contractual relations, and dismissed her claims against the individual board members. The court dismissed all of Creswell’s claims awarding costs to those she sued.
The appeals court has affirmed the decision of lower court, noting that Creswell “did not provide us with any argument why the district court erred in dismissing her unjust-enrichment, breach of contract, or rescission claims against the various respondents.” Nor did she provide evidence to support her claims of “breach of duty, fraud, and violation of consumer protection statutes.”
The court noted that Creswell could not sue the homeowners association over the construction defects because she “failed to prove that she was damaged by the association’s nondisclosure.” The court noted that “there are no damages in this case,” as Creswell “was never assessed for any repairs, she had not paid anything out-of-pocket for repairs, and she has presented no evidence that the value of her individual unit has declined because of the alleged undisclosed construction defects.”
The court granted the other parties motion to dismiss and denied Creswell’s motion to supplement the record. Costs were awarded to the respondents.
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What If an Irma-Like Hurricane Hit the New York City Metro Area?
September 20, 2017 —
Christopher Flavelle & Henry Goldman - BloombergIt sounds like a Hollywood disaster movie.
A Category 5 hurricane churning in the mid-Atlantic suddenly veers northwest -- and heads straight for New York City.
The good news is that, for now, experts agree a Cat 5-sized deluge appears to be a meteorological impossibility in the U.S. Northeast, given today’s sea temperatures and weather patterns.
The bad news: A storm doesn’t need to pack the wallop of a Harvey or an Irma to knock out the region. Superstorm Sandy, whose wind speed was a relatively tame 80 miles per hour when it reached New Jersey, did $70 billion of damage in October 2012. Irma made landfall in Puerto Rico at 185 mph.
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Christopher Flavelle, Bloomberg and
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The Importance of Engaging Design Professional Experts Early, with a Focus on Massachusetts Law
June 27, 2022 —
Jay Gregory - Gordon & Rees Construction Law BlogIn any Massachusetts case alleging negligence against a design professional, an expert witness on the topic of liability is a critical, early consideration. Given the expense of expert witnesses, counsel representing design professionals are wise to evaluate (1) the need for an expert, (2) the timing of the engagement of an expert, and (3) the scope of the expert’s services.
To begin, not every allegation of negligence against a design professional necessitates an expert opinion. “The test for determining whether a particular a particular matter is a proper one for expert testimony is whether the testimony will assist the jury in understanding issues of fact beyond their common experience.” Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Co., 439 Mass. 387, 402 (2003) (addressing duties of an insurer). For instance, in its ruling in Parent v. Stone & Webster Engineering Corp., the Massachusetts Supreme Court noted no expert would be necessary to prove professional negligence where an electrician was injured by a mislabeled distribution box carrying 2,300 volts. 408 Mass. 108 (1990). It is reasonable to expect lay jurors to comprehend the duty of an electrician to properly label a distribution box carrying potentially fatal quantities of voltage. To the extent liability is readily recognizable to the average juror (i.e. “within the ken of the average juror”), significant cost savings are achievable by forgoing the use of an expert witness. That, however, is the exception.
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Jay S. Gregory, Gordon Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
Providing Notice of Claims Under Your Construction Contract
April 02, 2014 —
Beverley BevenFlorez-CDJ STAFFCraig Martin on his blog Construction Contractor Advisor explained the importance of knowing when to provide notice under your construction contract: “Time and time again, courts rule that contractors must follow notice requirements in order to submit a claim for additional time or compensation.”
Martin cited the case JEM Contracting v. Morrison-Maierle, where the contractor provided verbal notice of a claim to the engineer, but failed to submit in writing until eighteen days later, which was past the notice requirement as stated in the contract. The judge denied the contractor’s claim and sided with the engineer and county.
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New York Construction Practice Team Obtains Summary Judgment and Dismissal of Labor Law Claims
October 01, 2024 —
Lewis Brisbois NewsroomNew York, N.Y. (August 23, 2024) – In Trujillo-Cruz v. City of New York, et al., New York Partner Inderjit Dhami, a member of New York Partner Meghan A. Cavalieri’s Construction Practice Team, recently obtained summary judgment and dismissal of the plaintiff's Labor Law §240(1), §241(6) and §200 claims dismissing the entire case against national developer and construction company clients.
The plaintiff alleged to have sustained injuries as the result of a construction site accident occurring on July 11, 2018, while in the scope of his employment as a laborer in connection with the construction/renovation of a residential apartment building in Brooklyn, New York. Specifically, the plaintiff alleged that he was injured when he was coming down from a ladder and fell on a 2”x 4”, causing him disabling injuries. The plaintiffs’ counsel articulated a $3 million settlement demand.
Labor Law §240(1) imposes absolute liability on a defendant where an injured worker engaged in the performance of covered construction work establishes that a safety device proved inadequate to shield him from elevation-related harm, and that the defendant’s failure to provide an adequate safety device proximately caused the injuries alleged. The plaintiff first testified that he stepped on the 2” x 4” after he came down off of the ladder, but his counsel then prompted him to recalibrate his testimony by asking whether the accident arose when he was coming down the ladder or after he had come down off of the ladder. The plaintiff changed his testimony, alleging that the accident arose as he was coming down the ladder and that he remained partially on the ladder when he stepped on the piece of formwork and fell. Inderjit argued that the plaintiff’s reframing of his deposition testimony was immaterial for purposes of the Labor Law § 240 (1) analysis. Irrespective of whether the plaintiff was on solid ground or had one foot on the ladder at the time of the occurrence, his Labor Law § 240 (1) claim was unavailing in that the accident did not arise as a result of the type of extraordinary elevation-related peril protected by Labor Law § 240 (1). Justice Maslow agreed and dismissed the plaintiff’s Labor Law § 240 (1) claims.
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Lewis Brisbois
Dave McLain named Barrister’s Best Construction Defects Lawyer for Defendants for 2019
January 20, 2020 —
David M. McLain – Colorado Construction LitigationThe attorneys and staff at Higgins, Hopkins, McLain & Roswell are proud to announce that Law Week Colorado named Founding Member Dave McLain as the 2019 People’s Choice for Best Construction Defects Lawyer for Defendants. According to the publication:
Law Week Colorado asked its readership to weigh in on the best attorneys in just about every practice area we could think of. We received hundreds of responses and sifted through the votes for each category to determine the “People’s Choice” winner – the top attorney in each practice area according to other attorneys. And then we handed it to the “Barrister” (the hive mind of Law Week staff, supplemented by public votes and a healthy dose of additional research) to determine the Barrister’s Choice.
In recognizing Mr. McLain this year, Law Week Colorado stated:
Previously appearing in Law Week’s 2015 Barrister’s Best issue [in which he was recognized as the Barrister’s Choice as Best Construction Defects Lawyer for Defendants], David McLain participates in numerous speaking engagements on construction defects claims and is seen as a leader in the field. His extensive experience over the last two decades of practice speaks for itself.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
