Nonparty Discovery in California Arbitration: How to Get What You Want
January 08, 2019 —
Leilani L. Jones - Payne & FearsOpting for arbitration requires attorneys to balance efficiency and procedural protections. The implications of arbitration are something clients certainly have to carefully consider both when drafting arbitration provisions, and after initiating a demand. While arbitration can in many respects streamline the civil discovery process, one of the largest roadblocks for cases in California arbitrations is “streamlining” discovery from nonparties. This article explores the challenges presented by third party discovery in arbitration, and proposes strategies for obtaining such discovery efficiently and expeditiously.
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Leilani L. Jones, Payne & FearsMs. Jones may be contacted at
llj@paynefears.com
Is New York Heading for a Construction Defect Boom?
March 12, 2015 —
Beverley BevenFlorez-CDJ STAFFThe New York Times reported that “[t]here is growing concern that some developers are repeating the mistakes of the last housing boom and delivering substandard product.”
“My phone is ringing already on projects that were just completed,” Steven D. Sladkus, a Manhattan real estate lawyer who says his firm has dozens of active construction defect cases, told the New York Times. “Uh-oh, here we go again.”
Recent data shows a rising trend of building plans in New York: “Last year, the city issued construction permits for 20,300 units of housing, according to the Real Estate Board of New York. And the state attorney general’s office received submissions for 263 offering plans for condo conversions and new construction in 2014, up from 184 in 2011. Those numbers will most likely grow in 2015, encouraged by Mayor Bill de Blasio’s push to build more housing.”
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He's the Top U.S. Mortgage Salesman. His Daughter Isn't Buying It
July 16, 2014 —
Lorraine Woellert – BloombergDavid Stevens, chief executive officer of the Mortgage Bankers Association, has spent his career lauding the merits of homeownership. One person still isn’t buying it: his daughter.
Sara Stevens, 27, knows interest rates are low, rents are high and owning a home can build wealth. She also had a front-row seat to the worst real-estate slump since the Great Depression.
“The world has changed,” she said.
Six years since the collapse of Lehman Brothers triggered a financial meltdown, some young adults are more risk averse and view the potential upsides of status and wealth more skeptically than before the crisis, altering the homeownership calculation. It’s more than the weight of student loans, an iffy job market and tight credit -- even those who can buy are hesitant.
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Lorraine Woellert, BloombergMs. Woellert may be contacted at
lwoellert@bloomberg.net
Trump Administration Waives Border Wall Procurement Rules
March 23, 2020 —
Mary B. Powers & Debra K. Rubin - Engineering News-RecordActing Homeland Security Secretary Chad Wolf on Feb. 20 waived federal contracting rules to expedite construction of the U.S-Mexico border wall in California, Arizona, New Mexico and Texas, citing legal authority under several U.S. laws, some dating back to the 1990s, to deal with what he claimed is "an acute and immediate need to construct physical barriers and roads ... to prevent unlawful entries."
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Mary B. Powers, Engineering News-Record and
Debra K. Rubin, Engineering News-Record
Ms. Rubin may be contacted at rubind@enr.com
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Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders
April 20, 2011 —
Beverley BevenFlorez CDJ STAFFThe Ohio Court of Appeals affirmed the judgment in Landis v. William Fannin Builders. Landis contracted Fannin Builders to build their home. The case involved staining problems on the T1-11 siding chosen by the plaintiffs.
After a year and a half of discussion on how to resolve the problem of uneven staining on the siding, Landis filed suit “against Fannin Builders, alleging claims for breach of contract, breach of the express limited warranty, and violation of the Ohio Consumer Sales Practices Act (“OCSPA”). Fannin Builders, in turn, filed a third-party complaint against 84 Lumber, alleging claims for breach of contract and indemnification. With the trial court’s leave, Fannin Builders also later amended its answer to add a counterclaim against appellees for breach of contract and unjust enrichment. In the counterclaim, Fannin Builders alleged that appellees still owed it $3,908.98 for the construction of appellees’ home.”
“In its decision, the trial court found in appellees’ favor on their breach of contract claim and against appellees on their claims for breach of the express limited warranty and violation of the OCSPA. Additionally, the trial court found in Fannin Builders’ favor on its counterclaim for breach of contract and against Fannin Builders on its third-party claims for breach of contract and indemnity. The trial court determined that appellees’ damages amounted to $66,906.24, and after setting off the $3,908.98 that appellees owed Fannin Builders under the construction contract, the trial court awarded appellees $62,997.26. The trial court reduced its decision to judgment on May 18, 2010.”
Fannin Builders appealed this judgment and assigned the following errors:
[1.] The Trial Court Erred as a Matter of Law by Concluding that Appellant Breached its Contract with Appellees when it provided a Semi-Transparent Oil-Based Stain that Simply did not Meet their Approval.
[a.] The Contract does not Contain a Satisfaction Clause.
[b.] Even if the Court Implies a Satisfaction Clause, the Court Should Apply an Objective Standard.
[2.] The Trial Court Erred as a Matter of Law by Failing to Consider Appellant’s Right to Cure.
[3.] The Trial Court committed Reversible Error by not Assessing Damages Using “Diminished Value Standard,” and by Creating a Remedy that Constitutes Economic Waste.
[4.] The Trial Court Erred as a Matter of Law by Concluding that Appellant is Barred from Seeking Indemnification When 84 [Lumber] Never Fulfilled its Obligations Pursuant to the Settlement Agreement Entered on August 2, 2005.
In response to the first assigned error, the Court of Appeals stated: “Because the failure to provide siding of a uniform color, not appellees’ displeasure, breached the contract, we reject Fannin Builders’ contention that the trial court implied a satisfaction clause into the contract and found a breach of that clause. Accordingly, we overrule Fannin Builders’ first assignment of error.”
The Court of Appeals overruled the second assignment of error and provided the following reasoning: “Although Fannin Builders depends upon a term of the limited warranty for its right to cure, the trial court concluded that no breach of the limited warranty occurred. Fannin Builders breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIA’s Quality Standards. Consequently, the limited warranty does not apply to this case, and thus, it does not prevent appellees’ recovery of damages.”
The Appeals Court found “the trial court’s award of damages” was “both reasonable and supported by competent, credible evidence,” and therefore concluded “that the trial court did not err in setting appellees’ damages at $62,997.26.” The Fannin Builders third assignment of error was overruled.
The fourth and final assignment of error was also overruled by the Court of Appeals. “While Fannin Builders correctly asserts that 84 Lumber never installed the replacement siding, it ignores the fact that it ordered 84 Lumber to remove the replacement siding from appellees’ property. Thus, Fannin Builders precluded 84 Lumber from completely performing under the August 2, 2005 letter agreement. […] Consequently, Fannin Builders cannot now claim that the letter agreement is unenforceable or that it is entitled to indemnification from 84 Lumber. Because Fannin Builders assumed all liability for the defective siding in the letter agreement, it is responsible for appellees’ damages.”
James A. Zitesman, Columbus, Ohio Business Attorney, compared the case to Jones v. Centex (Ohio App. 2010), which had a different verdict:
“The common thread is the implied warranty of good workmanship. In the Jones case, the Court found that the buyers had in fact waived all implied warranties, including the implied warranty of good workmanship. In the contract between Jones and Centex, the builder stated that it “…would not sell the property to Purchasers without this waiver.” Probably should have been a sign to the buyers.
In the Landis case, the Court stated, “Contracts for the future construction of a residence include a duty, implied by law, that the builder must perform its work in a workmanlike manner.” The Court gave significant weight to the concept of the implied warranty of good workmanship. The builder relied upon the BIA Warranty which limits builders’ liability and exposure to legal issues. The trial court concluded there was no breach of the limited warranty, rather the builder “breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIAs Quality Standards.”
The Supreme Court of Ohio has accepted the Jones v. Centex Homes case for review.
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Consultant Says It's Time to Overhaul Construction Defect Laws in Nevada
February 07, 2013 —
CDJ STAFFRandi Thompson, a Republican political and media consultant, told the Reno Gazette-Journal what she wished Governor Brian Sandoval had said during his recent State of the State address in Nevada. Construction defect litigation was one of the issues that Ms. Thompson said that Governor Sandoval should have addressed. Thompson said that the governor "should have said it's time to get rid of Nevada's horrid construction defect laws." Ms. Thompson said that "these laws extort money from small business subcontractors who likely had nothing whatsoever do to with any real or perceived defect." She attributed the ongoing construction defect scandal in Las Vegas to "bad law."
Ms. Thompson said that these issues are unlikely to be addressed, because "the Democrats control both houses in the Legislature" and the issues are "sacred cows to the Democrats' constituents."
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Nebraska Court Ruling Backs Latest Keystone XL Pipeline Route
September 30, 2019 —
Tom Ichniowski - Engineering News-RecordAdvocates of the Keystone XL oil pipeline have won a victory in their long effort to construct the project, as the Nebraska Supreme Court upheld a state commission's 2017 finding that supported the project's latest route alignment through the state.
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Tom Ichniowski, ENRMr. Ichniowski may be contacted at
ichniowskit@enr.com
Maintenance Issues Ignite Arguments at Indiana School
January 31, 2014 —
Beverley BevenFlorez-CDJ STAFFStudents and faculty at Roosevelt College and Career Academy in Gary, Indiana have dealt with the building’s burst pipes since last year, however, the recent cold temperatures have worsened the issue, “disrupting classes and causing costly repairs,” according to the Post-Tribune.
EdisonLearning now runs the school: “The state tapped the private, for-profit education management company for Roosevelt after six straight years of anemically low test scores.” The “lengthy agreement” between EdisonLearning and the school district states holds the district “responsible for major repairs and to maintain the building just like the other schools it runs.”
“The money we were provided is for academic purposes, not for the operation of the building,” said Michael Serpe, spokesman for EdisonLearning told the Post-Tribune. “If you rent a home and the heat doesn’t work, you contact the landlord.”
“If the building is monitored properly, we could stop these problems but we have to get to them earlier,” said Charles Prewitt, the district’s director of building, grounds and maintenance, as reported by the Post-Tribune. Prewitt added that part of the maintenance problems is lack of access. He alleges that “EdisonLearning changed the locks and provided a swipe card for only one door.”
“There always seem to be reasons that things don’t get fixed at Roosevelt when they get fixed everywhere else,” Serpe retorted.
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