SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Home Prices in 20 U.S. Cities Increased 4.3% in November

January 28, 2015 — Victoria Stilwell – Bloomberg
(Bloomberg) -- Home prices in 20 U.S. cities rose at a slower pace in the year ended in November, a sign the industry struggled to find momentum even amid low mortgage rates. The S&P/Case-Shiller index of property values increased 4.3 percent from November 2013 after rising 4.5 percent in the year ended in October, the group said Tuesday in New York. The median projection of 28 economists surveyed by Bloomberg called for a 4.3 percent year-over-year advance. Nationally, prices rose 4.7 percent after a 4.6 percent gain in the year ended in October. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg
Ms. Stilwell may be contacted at vstilwell1@bloomberg.net

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Jury Trials and Mediation in Philadelphia County: Virtually in Person

July 27, 2020 — Andrew F. Susko, Robert G. Devine & Daniel J. Ferhat - White and Williams LLP
When will the trial court in Philadelphia County be open for jury trials in civil actions? While a precise prediction, given the current state of our trial courts in the middle of the COVID-19 pandemic, is difficult to make, what is known is that the use of virtual technology is likely permanently changing the landscape of civil litigation, including depositions, mediation, and other forms of alternative dispute resolution. Even civil jury trials, at least in the near term and during the pandemic, are being conducted virtually, either by private agreement, or through the courts, as is occurring in Texas and most recently in Florida with its pilot virtual trial program in five of its trial courts. While it is necessary at present for the parties to consent to a virtual trial, courts may ultimately compel the parties’ participation. Regardless, litigants and their counsel are well advised to understand the complexities and manner of a virtual trial. Seasoned trial attorneys have long experienced and are comfortable with virtual depositions bringing distant counsel, parties and witnesses together through technology to present testimony. The use of virtual technology as a means for court arguments and hearings, mediation, and alternative dispute resolution, while novel and emerging as the new normal, is territory where a comfort level can be achieved. And while distinctions most assuredly exist, recent experience has demonstrated that court arguments, mediations and depositions can be conducted effectively remotely and virtually. Legal issues certainly do remain in the context of the deposition of parties to a civil action regarding whether a lawyer’s physical presence in the same room with a party-witness can be demanded, and whether courts would compel a virtual deposition during the COVID-19 pandemic where such physical presence of a party and their attorney could not be achieved. Undoubtedly these issues will be resolved, likely sooner than later, given the scope of the pandemic in certain areas. Reprinted courtesy of White and Williams LLP attorneys Andrew F. Susko, Robert G. Devine and Daniel J. Ferhat Mr. Susko may be contacted at suskoa@whiteandwilliams.com Mr. Devine may be contacted at deviner@whiteandwilliams.com Mr. Ferhat may be contacted at ferhatd@whiteandwilliams.com Read the court decision
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EPA Announces Decision to Retain Current Position on RCRA Regulation of Oil and Gas Production Wastes

June 03, 2019 — Anthony B. Cavender - Gravel2Gavel
After much study, EPA has decided against changing its current RCRA Subtitle D rules affecting the state regulation of oil and gas exploration & production waste. Since 1988, EPA has determined that most such wastes should be regulated as only non-hazardous wastes subject to RCRA Subtitle D, and not the more onerous hazardous waste provisions of RCRA Subtitle C. (See the Regulatory Determination of Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 FR 25,446 (July 6,1988).) As a result, under the Subtitle D rules, the primary regulators of such waste are state regulatory agencies, which follow the state plan non-hazardous waste guidelines developed by EPA. This regulatory disposition has proven to be fairly controversial, and it was recently challenged in a lawsuit filed in the U.S. District Court for the District of Columbia: Environmental Integrity Project, et al. v. McCarthy. To settle this lawsuit, EPA and the plaintiffs entered into a consent decree by which EPA was to make certain determinations about the future of the program after conducting an appropriate study. That study, Management of Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action, has been completed, and it concludes, after a fairly comprehensive review of these state regulatory programs, that “revisions to the federal regulations for the management of E&P wastes under Subtitle D of RCRA (40 CFR Part 257) are not necessary at this time.” In a statement released on April 23, 2019, EPA accepted these findings and promised that it would continue to work with states and other stakeholders to identify areas for improvement and to address emerging issues to ensure that exploration, development and production wastes “continue to be managed in a manner that is protective of human health and the environment.” Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Lost Productivity or Inefficiency Claim Can Be Challenging to Prove

May 02, 2022 — David Adelstein - Florida Construction Legal Updates
One of the most challenging claims to prove is a lost productivity or inefficiency claim. There is an alluring appeal to these claims because there are oftentimes intriguing facts and high damages. But the allure of the presentation of the claim does not compensate for the actual burden of proof in proving the lost productivity or inefficiency claim, which will require an expert. And they really are challenging to prove. Don’t take it from me. A recent Federal Claims Court opinion, Nova Group/Tutor-Saliba v. U.S., 2022 WL 815826, (Fed.Cl. 2022), that I also discussed in the preceding article, exemplifies this point. To determine lost productivity or inefficiency, the claimant’s expert tried three different methodologies. First, the expert looked at industry standard lost productivity factors such as those promulgated by the Mechanical Contractor’s Association. However, the claimant was not a mechanical contractor and there is a bunch of subjectivity involved when using these factors. The expert decided not to use such industry standard factors correctly noting they provide value when you are looking at a potential impact prospectively, but once you incur actual damages and have real data, it is not an accurate measure. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Trump Administration Announces New Eviction Moratorium

October 12, 2020 — Zachary Kessler - Gravel2Gavel
With the financial impacts of the COVID-19 pandemic continuing to be felt by the American public, the Trump Administration has taken steps to try to allay a coming eviction crisis by enacting a moratorium on evictions through the end of 2020. With the first eviction moratorium instituted by the CARES Act expiring, lawmakers have been pushing to include eviction protections in the next COVID-19 relief package. However, with Congressional leaders still far from an agreement on the next bill, the Centers for Disease Control and Prevention (CDC) has now used its emergency pandemic powers under the Public Health Service Act to temporarily halt residential evictions. Under the Order, a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory actions will not be permitted to evict any covered person through December 31, 2020. Under the Order, “covered persons,” are any tenant, lessee, or resident of a residential property who meets the five-part test included in the order and delivers the executed declaration to their landlord. The five requirements in the declaration, which must be certified under the penalty of perjury are:

• The individual has used best efforts to obtain all available government assistance for rent or housing;
• The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;

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Reprinted courtesy of Zachary Kessler, Pillsbury
Mr. Kessler may be contacted at zachary.kessler@pillsburylaw.com

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Boston Building Boom Seems Sustainable

November 20, 2013 — CDJ STAFF
According to the analytics and advisory firm PPR, the Boston-area market is “ungodly tight.” So even with all the building planned for the area, it’s likely to make the market normal and not lead to a glut. PPR predicts that the building boom may cool off in 2016, with the next mayoral administration. Some of the condo real estate has been fetching multi-million prices. Sue Hawkes, president and CEO of The Collaborative Cos. Points out that there are about 1,500 units in Boston priced in excess of $2 million. She wonders about future buyers in the luxury market. “Where are all these people going to come from?” Read the court decision
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#4 CDJ Topic: Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc.

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
In the above mentioned case, a Texas architectural firm (HKS Architects, Inc.) hired a California design firm (Vita Planning and Landscape Architecture, Inc.) as a sub-consultant, according to Garret Murai of Wendel Rosen Black & Dean LLP in a post on his California Construction Law Blog. After Vita filed a complaint in California against HKS, HKS filed a motion to dismiss on the grounds that the landscape design contract included a “Texas forum selection clause.” The court found in favor of Vita, stating that “section 410.42 precludes enforcement of the forum selection clause requiring Vita to litigate its dispute against HKS in Texas.” Read the full story... In their article, “Court of Appeal Opens Pandora’s Box on Definition of ‘Contractor’ for Forum Selection Clauses,” Haight Brown & Bonesteel LLP attorneys Abigail E. Lighthart and David A. Harris also analyzed the Vita case: “The Vita ruling expands the protections by Section 410.42 beyond traditional ‘builders’ to design professionals and architects who do not actually ‘build’ a project. What remains to be seen is whether other courts will take the expansion to cover other groups that are in any way involved in a construction project.” Read the full story... Read the court decision
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The Big Three: The 9th Circuit Joins The 6th Circuit and 7th Circuit in Holding That Sanctions For Bad-Faith Litigation Tactics Can Only Be Awarded Against Individual Lawyers and Not Law Firms

September 03, 2015 — Christopher B. Lloyd & Stephen J. Squillario – Haight Brown & Bonesteel LLP
In Law v. Wells Fargo Bank, N.A. (2015 S.O.S. 13–56099 – filed August 27, 2015), the Ninth Circuit joined the shortlist of Circuit Courts to hold that sanctions for bad-faith litigation tactics under 28 U.S.C. section 1927 can only be sought against individual attorneys and not law firms. Section 1927 authorizes sanctions against “[a]ny attorney or other person admitted to conduct cases in any court of the United States … who so multiplies the proceedings in any case unreasonably and vexatiously….” On behalf of the client, an attorney with Kaass Law filed a complaint against ten different defendants, including Wells Fargo Bank, which moved to dismiss under F.R.C.P. Rule 12(b)(6). Rather than responding to the motion to dismiss, plaintiff filed a motion to amend the initial complaint; Wells Fargo Bank filed a notice of non-opposition. Reprinted courtesy of Christopher B. Lloyd, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr.Lloyd may be contacted at clloyd@hbblaw.com Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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