Elon Musk's Boring Co. Is Feuding With Texas Over a Driveway
July 25, 2022 —
Sarah McBride - BloombergWhile Elon Musk is publicly making a big deal about moving to Texas and cozying up to the governor, behind the scenes his tunnel-building venture, Boring Co., is wrangling with local authorities in the state over a host of seemingly mundane permitting issues.
Since Boring bought land last May to create a research and development center in Bastrop, Texas, a rural area outside Austin, the company has put workers up on mobile homes at the site without authorized sewage facilities, failed to get air and stormwater permits and built a driveway without first getting official approval, according to documents obtained by Bloomberg News through a public records request.
The company’s dealings with Bastrop are yet another illustration of how Musk’s businesses often push the boundaries of or simply ignore regulations that bind other companies. In recent years his Tesla Inc. restarted production at its Fremont plant in defiance of pandemic rules to stay closed, Boring tried to build a tunnel in Los Angeles without going through an environmental review process and the US Securities and Exchange Commission is examining the disclosure of Musk’s stake in Twitter Inc.
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Sarah McBride, Bloomberg
Handshake Deals Gone Wrong
May 22, 2023 —
Jessica Allain - ConsensusDocsThe construction industry has it fair share of “handshake deals”, oral agreements relying on the integrity of the people involved. But when it comes to protecting and enforcing legal rights, it is always a better idea to properly paper the deal and get it in writing. Otherwise, contractors relying on verbal promises may find themselves without any legal remedy should the deal go south. After all, it is not just a matter of trust, but also a way to document that everybody agrees on what the terms of the deal actually are.
For example, a recent case out of New York highlights the dangers of unwritten promises. In Castle Restoration, LLC v. Castle Restoration & Construction, Inc., No. 16349-15 (N.Y. App. Div. 2/9/22), 2022 NY Slip Op 50082(U), 2022 WL 402882, 2022 N.Y. Misc. LEXIS 485, Castle Inc. and Castle LLC entered into a deal for an asset sale to transfer equipment and a client list from Castle Inc. to Castle LLC. While that initial asset sale was properly papered with sale documents and a promissory note, the parties entered into a subsequent handshake/oral agreement where Castle LLC agreed to provide Castle Inc. with labor and materials on construction projects, and those goods and services would offset the payment obligation under the promissory note. But the problem was that the contract for the asset sale had a provision that the agreement could not be changed by oral agreement; rather, any changes had to be made in writing.
Reprinted courtesy of
Jessica Allain, Jones Walker LLP (ConsensusDocs)
Ms. Allain may be contacted at jallain@joneswalker.com
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WA Supreme Court Allows Property Owner to Sue Engineering Firm for Lost Profits
February 25, 2014 —
Beverley BevenFlorez-CDJ STAFFIn the Daily Journal of Commerce, Scott A. Smith and James H. Wendell discussed the recent Washington Supreme Court decision in Donatelli v D. R. Strong Consulting Engineers. The court’s ruling casts “doubt on a company's ability to limit its liability for economic losses arising out of a contract dispute.”
The Donatellis hired D. R. Strong Consulting Engineers to develop vacant land in King County, however, the “project did not go according to plan and the real estate market collapsed before the project was completed,” according to the Daily Journal of Commerce. The “Donatellis lost their property through foreclosure” and then “sued the engineering firm for more than $1.5 million in lost profits.”
D. R. Strong Consulting Engineers asked for the negligence claims to be dismissed “because the parties' contract contained a provision limiting the engineering firm's liability to the amount of its fee for ‘any injury or loss on account of any error, omission, or other professional negligence.’” However, the Washington Supreme Court ruled that “the case could proceed in the trial court on a theory that the engineers could be liable if they made negligent misrepresentations that induced the Donatellis to enter into the contract in the first place.”
Smith and Wendell stated that because of “this decision, engineering, architectural, construction, and other professional service companies may now face damage claims they thought they were contractually protected against.”
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LEEDigation: A Different Take
June 22, 2020 —
Christopher G. Hill - Construction Law MusingsThis weeks Guest Post Friday at Musings is a real treat. Sara Sweeney is a registered architect, LEED AP and GreenFaith Fellow in religious environmental leadership. Her 18-year architectural career reflects her passion and commitment to sustainable building design and stewardship of our natural environment. She is the founder of EcoVision LLC, a solutions-based research and consulting firm, grounded in sustainable design practices, environmental stewardship, and building science.
Dude
Every so often I come across a word that drives me nuts. A few years ago it was ‘Dude.’ Lately, it is ‘LEEDigation.’ It’s a new term to “describe green building litigation” coined by Chris Cheatham, a fine person and very knowledgeable attorney in construction law and a LEED AP as well. Per his definition, LEEDigation “could involve disputes arising from green building certification, could arise if a project fails to obtain government incentives or satisfy mandates for green building construction, or could simply result from improperly designed or constructed green building strategies. It all makes sense. So why does it drive me nuts?
Round Peg. Square Hole.
Although I fully understand why the term was coined, such a term keeps us in flat world, that is, the world of conventional design and construction. Designing and building to LEED standards, or rather, just designing and building sustainably in general, whether to meet a third party standard or not, is a different way than what we have been used to. Period. Whereas our conventional way is focused on first costs, and sees the building more as a commodity than the human imprint and legacy on Earth, sustainable design and building is a process which, at its best, considers the economic impacts of NOT building responsibly. It is a more holistic way of building and balances long-term costs and implications with short term costs.
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The Law Office of Christopher G. HillMr. Eyerly may be contacted at
te@hawaiilawyer.com
Charles Eppolito Appointed Vice-Chair of the PBA Judicial Evaluation Commission and Receives Prestigious “President’s Award”
November 30, 2020 —
Charles Eppolito, III - White and Williams LLPPartner Charles (Chuck) Eppolito, III has been appointed as a Vice-Chair of the Pennsylvania Bar Association (PBA) Judicial Evaluation Commission. His three-year term begins immediately and will expire September 30, 2023. The PBA Judicial Evaluation Commission is responsible for developing and implementing a judicial evaluation process for appellate judicial candidates in the Commonwealth of Pennsylvania. As Vice-Chair, Chuck will oversee reviewing the investigative panel's report, interviewing each candidate, discussing qualifications and reaching an agreement upon and issuing a rating for each candidate for appellate judicial office.
Chuck has a long history of involvement with the 25,000-member organization, serving as PBA Secretary from 2007 to 2010, Chair of the House of Delegates from 2011 to 2013 and President from 2018 to 2019. Most recently, it was announced that Chuck is a recipient of a PBA “President’s Award” for his dedication and commitment to fulfilling the mission of the PBA COVID-19 Task Force. The award will be presented during the virtual PBA Awards Luncheon on Thursday, November 19, 2020.
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Charles Eppolito, III, White and Williams LLPMr. Eppolito may be contacted at
eppolitoc@whiteandwilliams.com
What Made the Savannah Harbor Upgrade So Complicated?
May 10, 2017 —
Jim Parsons - Engineering News-RecordOf all the East Coast port upgrade programs aimed at luring cargo traffic from the newly widened Panama Canal, the Savannah Harbor Expansion Project (SHEP) may well be the most ambitious, and complex. Elements of the joint effort by the U.S. Army Corps of Engineers’ Savannah District and the state of Georgia—originally estimated to cost $706 million, but subsequently increased to $973 million—range from 40 miles of channel dredging and new water quality mitigation facilities to the addition of an upstream fish passage and the recovery of a Civil War-era relic.
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Jim Parsons, ENRENR may be contacted at
ENR.com@bnpmedia.com
Bert L. Howe & Associates Returns as a Sponsor at the 30th Annual Construction Law Conference in San Antonio
January 13, 2017 —
Don MacGregor - Bert L. Howe & Associates, Inc.Bert L. Howe & Associates, Inc. is proud to join with the Texas Institute of CLE, and return for the third year as a sponsor and exhibitor at the 30th Annual Construction Law Conference to be held March 2nd & 3rd, 2017 at the La Cantera Resort and Spa in San Antonio.
With offices in San Antonio and Houston serving all of Texas, Bert L. Howe & Associates, Inc. (BHA) offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in nearly 6,500 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, and both civil and structural engineers, and has provided services on behalf of developers, general contractors and sub-contractors.
BHA’s experience covers the full range of construction and construction defect litigation, including single and multi-family residential (including high-rise), institutional (schools, hospitals and government buildings), commercial, and industrial claims. BHA specializes in coverage, exposure, premises liability, and delay claim analysis as well.
As the litigation climate in Texas continues to change, and as the number of construction defect and other construction related cases continues to rise, it is becoming more important for contractors and builders to be aggressive in preparing for claims before they are made, and in defending against those claims once they are filed. Since 1993, Bert L. Howe & Associates has been an industry leader in providing construction consulting services, and has been a trusted partner with builders and insurance carriers, both large and small, across the Western and Southern United States. Here in Texas, we have been providing construction defect and construction-claims related forensic expert services for the past decade with a proven track record of successful results. To-date, we have participated in the successful defense of claims involving thousands homes here in Texas alone.
For those of you planning on attending the conference, or those who may know someone who will be, we encourage you to stop by the BHA booth and we welcome the opportunity to discuss further the broad range of services provided by BHA.
For your convenience, here is a link to the information page for the 30th Annual Construction Law Conference: https://www.clesolutions.com/store.aspx?categoryid=2
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Don MacGregor, Bert L. Howe & Associates, Inc.Mr. MacGregor may be contacted at
dmac@berthowe.com
When Construction Contracts Go Sideways in Bankruptcy
February 16, 2017 —
Tracy Green - California Construction Law BlogThe contractor on a project files a bankruptcy case. How should the property owner and subcontractors proceed? When a party to a contract files bankruptcy, the other party’s actions are constrained by the bankruptcy code.
Types of Bankruptcies
The typical bankruptcy case involves a chapter 7 complete liquidation, chapter 13 reorganization for an individual, or a chapter 11 reorganization or liquidation. In a chapter 7 the business ceases to operate and a panel trustee is appointed immediately upon the filing of the case. The chapter 7 trustee’s duties are to liquidate assets for the benefit of creditors and to prosecute litigation that can result in assets for the creditors. In a chapter 13, the individual debtor continues to operate, and there is a trustee, but the trustee’s roll is limited to reviewing the chapter 13 plan and making sure that the plan is performed. In a chapter 11, the debtor retains control of its assets and continues to operate its business until a plan is confirmed. During the chapter 11 period before a plan is approved, the debtor will decide which contracts it wants to assume or reject, all while operating the company and preparing a plan.
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Tracy Green, Wendel Rosen Black & Dean LLPMs. Green may be contacted at
tgreen@wendel.com
