Developer’s Fraudulent Statements Are His Responsibility Alone in Construction Defect Case
February 10, 2012 —
CDJ STAFFThe Texas Court of Appeals ruled on December 21 in the case of Helm v Kingston, a construction defect case. After purchasing what was described as “an extremely well-built” two-bedroom townhouse, Mr. Kingston made complaints of construction defects. Greenway Development did not repair the defects to Kingston’s satisfaction, and he filed notice of suit. In his suit, he claimed that GDI and its president, John Helm, had committed fraud and negligent misrepresentation. Kingston claimed that Helm “fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of workmanship was atrocious.” Helms brought a counterclaim that Kingston’s suit was frivolous.
About four years after Kingston purchased the townhome, the suit proceeded to trial. The trial court determined that Helm was not “liable in his individual capacity,” but this was reversed at appeal.
A second trial was held ten years later on the question of whether Kingston’s unit was a townhome or an apartment. A jury found that Helm “engaged in a false, misleading or deceptive act or practice that Kingston relied on to his detriment.” Kingston was awarded $75,862.29 and an additional $95,000 in attorney fees by the jury. Helms made an unsuccessful appeal to the Appeals Court, after which Kingston was awarded an additional $10,000. Helms then made an unsuccessful appeal to the Texas Supreme Court, which lead to an additional $3,000 for Kingston. There was also a verdict of $48,770.09 in pre-judgment interest and “five percent post-judgment interest accruing from the date of the judgment until the time the judgment is paid. Helm appealed.
In his appeal, Helm raised seven issues, which the court reorganized into five Kingston raised one issue on cross-appeal.
Helms’ first claim was that Kingston “failed to satisfy the requirement of” Texas’s Residential Construction Liability Act and that by not filing under the RCLA, Kingston’s fraud and misrepresentation claims were preempted. Further Helms claimed that the RCLA limited Kingston’s damages. The court rejected this, as the RCLA deals with complaints made to a contractor and not only did Helm fail to “conclusively establish” his “status as a ‘contractor’ under the statutory definition,” Helm testified that he was “not a contactor” at the pre-trial hearing.
Helms’s second claim was that Kingston’s later claim of a misconstructed firewall should be barred, claiming that Kingston “‘had knowledge of a defect in the firewall’ as early as 1997 but did not assert them until 2007.” The court rejected this because Kingston’s claim was that “Helm ‘fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of the workmanship was atrocious.’”
Helms also challenged whether his statements that the residence was of “good quality” constituted fraud and misrepresentation under Texas’s Deceptive Trade Practices-Consumer Protection Act. The court concluded that Helm was in a position to make knowledgeable statements and further that “residential housing units are not artistic works for which quality is inherently a matter of subjective judgment.” Helm also claimed that Kingston could have avoided certain repair expenses through the “exercise of reasonable care.” Helms argued that the repairs could have been made for $6,400. The court disagreed, as these claims were cited only to invoke the DTPA, and that later petitions established additional defects.
Helms’s next claim was that he was not allowed to designate responsible third parties. The court rejected this because there GDI represented matters concerning the residence only through Helm’s statements. The court noted that “Helm is correct that?third parties may be liable for fraud if they ‘participated in the fraudulent transactions and reaped the benefits,’” but they note that “Helm never specifically alleged that GDI or CREIC participated in Helm’s alleged fraudulent transactions.
The final issue in the decision was about court costs, and here the court denied claims on both sides. Helm argued that the award of legal fees were excessive, as they exceeded the actual damages. The court noted that they “may not substitute our judgment for that of the jury,” and also that “the ratio between the actual damages awarded and the attorney’s fees is not a factor that determines the reasonableness of the fees.” But the court also rejected Kingston’s claim for post-judgment interest on $10,312.30 that Helm had deposited in the trial court’s registry. The court noted that the monies were to be paid out upon final judgment, but the mandate did not include any reference to interest.
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Preserving your Rights to Secure Payment on Construction Projects (with Examples)
March 22, 2017 —
David Adelstein – Florida Construction Legal UpdatesAll participants across the construction industry should understand what efforts they should take to maximize and collateralize payment. No one wants to work for free and, certainly, no one in the construction industry wants to work without ensuring there is some mechanism to recover payment in the event they remain unpaid. Being proactive and knowledgeable can go a long way when it comes to recovering your money.
Your Contract – It starts with the contract. You should understand those risks that are allocated to you and those that are allocated to another party. And, you should understand the contractual mechanism to resolve claims and disputes and whether your contract has a prevailing party attorney’s fees provision. In addition to contractual rights, there are tools for you to maximize your collection efforts.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
My Employees Could Have COVID-19. What Now?
March 23, 2020 —
Amy R. Patton, Leila S. Narvid, Matthew C. Lewis, Robert Tadashi Matsuishi & Sarah J. Odia - Payne & FearsUpdated Guidance as of March 19, 2020.
You are concerned about potentially sick employees in the workplace. One employee is off work sick for a couple of days, and then wants to return to work. Another plans to return to work after a week of travel. Another appears to be sick at work. They are coughing, sneezing, and appear to be short of breath. You are concerned they may have COVID-19. What can you do? You're not the only one concerned -- your other employees are, too.
Your public-facing employees want to wear masks to protect themselves. One employee tells you he doesn’t want to touch anything that others in the office have touched. What are your obligations to these employees?
Below, we address questions relating to keeping employees safe from COVID-19 in the workplace without violating the Americans with Disabilities Act (ADA) or employee privacy laws.
Can I require an employee returning from days away from work due to illness to report the symptoms the employee was experiencing that kept him/her out of work?
Short answer: yes, so long as the questions are limited to whether the employee has had flu-like symptoms. Though the ADA prohibits asking employees questions related to an employee disability, COVID-19 (like the seasonal flu) likely does not rise to the level of a disability, so asking an employee about flu-like (or COVID-19-like) symptoms is unlikely to elicit information related to a disability. The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer may ask if an employee is experiencing flu-like symptoms if the employee reports being ill during a pandemic.
Reprinted courtesy of Payne & Fears attorneys
Amy R. Patton,
Leila S. Narvid,
Matthew C. Lewis,
Robert Tadashi Matsuishi and
Sarah J. Odia
Ms. Patton may be contacted at arp@paynefears.com
Ms. Narvid may be contacted at ln@paynefears.com
Mr. Matthew may be contacted at mcl@paynefears.com
Mr. Robert may be contacted at rtm@paynefears.com
Ms. Odia may be contacted at sjo@paynefears.com
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The Best Lawyers in America© Peer Review Names Eight Newmeyer & Dillion Partners in Multiple Categories and Two Partners as Orange County’s Lawyers of the Year in Construction and Insurance Law
August 26, 2015 —
Press ReleaseNewmeyer & Dillion is pleased to announce that a number of its partners have again been recognized by
TheBest Lawyers in America© peer review as some of California’s Best Lawyers in multiple categories.
Our partners were recognized in the following practice areas in 2016 for Newport Beach, CA:
Michael S. Cucchissi / Real Estate Law
Jeffrey M. Dennis / Insurance Law
Gregory L. Dillion / Commercial Litigation, Construction Law, Insurance Law, Litigation - Construction, and Litigation - Real Estate
Joseph A. Ferrentino / Litigation – Construction and Litigation - Real Estate
Thomas F. Newmeyer / Commercial Litigation, Construction Law, and Litigation - Real Estate
John A. O'Hara / Litigation - Construction
Bonnie T. Roadarmel / Insurance Law
Carol Sherman Zaist/ Commercial Litigation
Beyond the above recognition, Greg Dillion and Tom Newmeyer were selected respectively as Orange County’s “Lawyers of the Year 2016” in Insurance Law and Construction Law. Greg Dillion and Joe Ferrentino previously have been honored as Orange County “Lawyers of the Year 2015” in Real Estate Litigation as well.
“We take pride in hiring great attorneys who will deliver the highest quality service and results for our clients. This recognition confirms that we are doing just that. It is a great honor and well deserved recognition for our partners to be selected by their peers as the Best Lawyers in their fields,” said Managing Partner, Jeff Dennis.
Because of the rigorous and transparent methodology used by Best Lawyers, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a prestigious honor. Inclusion in the Best Lawyers in America® 2016 is based on a rigorous national survey involving over 6.7 million detailed evaluations by other lawyers. For additional information, visit www.bestlawyers.com.
About Newmeyer & Dillion LLP
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With more than 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Recent Developments in Legislative Efforts To Combat Climate Change
October 30, 2023 —
Dominick Weinkam & Robert B. Cimmino - ConsensusDocsGovernments across the United States have been increasingly integrating climate considerations into legislation affecting various sectors of the economy. The construction industry is no exception. Recent legislative developments at various levels of government are reshaping construction practices to mitigate the industries’ greenhouse gas emissions and vulnerability to climate-related risks. These developments include incentivizing eco-friendly construction projects, mandating stricter regulations to reduce carbon emissions, and enhancing building resilience to more severe weather events. Contractors must stay abreast of these developments to ensure compliance with new substantive and administrative requirements to remain competitive in a changing environment.
Funding Greener Construction Projects: The Inflation Reduction Act
The federal Inflation Reduction Act (IRA) enacted in August 2022 marked a significant milestone in the pursuit of greener construction. The IRA is widely considered to be the single largest investment into climate change in history, with potential ripple effects throughout the construction industry. The IRA allocates substantial funds for projects utilizing “low-carbon” materials, with an explicit focus on climate-conscious construction. This initiative aligns with the broader goal of curbing emissions from sectors like steel, concrete, and glass, which have been major contributors to the nation’s carbon footprint.
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Dominick Weinkam, Watt Tieder and
Robert B. Cimmino, Watt Tieder
Mr. Weinkam may be contacted at dweinkam@watttieder.com
Mr. Cimmino may be contacted at rcimmino@watttieder.com
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Drastic Rebuild Resurrects Graves' Landmark Portland Building
September 14, 2020 —
Nadine M. Post - Engineering News-RecordFifteen minutes into a 105-minute job interview for the $195-million overhaul of the long-troubled Portland Public Service Building in Oregon’s largest city, owner’s rep Mike Day threw a curve ball to the unwitting design-build team of Howard S. Wright Construction Co. and architect DLR Group. Already hard at work solving Day’s first faux crisis scenario—a budget buster that threatened the viability of the makeover of the notoriously dysfunctional landmark—they had to regroup.
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Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com
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Economic Damages Cannot be Based On Speculation
October 16, 2018 —
David Adelstein - Florida Construction Legal UpdatesEconomic damages, unlike non-economic damages (such as those in personal injury disputes), need to rest on a reasonable basis. Economic damages are those routinely seen in a construction dispute. These damages cannot be based on conjecture or guesswork and need to be supported by competent substantial evidence. Otherwise, the economic damages will be deemed too speculative because they are not reasonably quantifiable. I recently discussed a case involving the professional boxer Canelo Alvarez that was sued by a former promoter for unjust enrichment. Although the promoter recovered a jury verdict for unjust enrichment damages against Canelo Alvarez, the verdict was reversed because the methodology utilized by the promoter to demonstrate damages was speculative. This is definitely not what a plaintiff wants to happen after prevailing at the trial level!
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Your “Independent Contractor” Clause Just Got a Little Less Relevant
January 12, 2015 —
Garret Murai – California Construction Law BlogConstruction projects are complex, multi-partied, multi-disciplinary endeavors, in which subcontracting all or a portion of the work to be performed is not uncommon.
When subcontracting work, parties usually make it clear in their contracts that the party performing work is acting as an “independent contractor.” Here’s a fairly typical provision from the AIA A201 General Conditions:
The parties agree that the contractual relationship on Contractor to Owner is one solely of an independent contractor in all respects and that the Contract Documents do not in any way create a partnership, joint venture or any other relationship between Owner and Contractor other than the contractual relationship as specified in this Agreement.
These provisions are intended to shield the contracting party from claims that it is responsible for workers’ compensation premiums, retirement contributions, health care insurance, or other benefits provided for the benefit of employees of the company performing the work. Fair enough.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
