Construction Law Insights

White Oak Power Constructors v. Mitsubishi Hitachi Power Sys. Ams., Inc., 2020 U.S. Dist. LEXIS 109637, 2020 WL 3414682 (E.D. Va. June 22, 2020)

The Wildcat Point Generation Facility, a nominal 1,000 megawatt combined-cycle natural gas fired power plant in rural Maryland, includes two gas turbines, associated generators, and related components supplied by Mitsubishi Hitachi Power Systems Americas, Inc. (“Mitsubishi”). The Equipment Purchase Agreement (“EPA”) between Mitsubishi and the power plant owner was subsequently assigned to the engineer-procure-construct contractor, White Oak Power Constructors (“White Oak”), a joint venture between PCL Industrial Construction Company and engineering firm Sargent & Lundy LLC. The EPA included several liquidated damages provisions under which Mitsubishi would pay for delays in document deliveries, equipment deliveries, and substantial

Krevskop v. Town Council (In re July 17, 2017 Decision of the Bd. of Zoning Appeals), 2020 Va. Cir. LEXIS 101 (Faifax Cnty. Cir. July 24, 2020)

Julia Kreyskop and Brian Joseph Buyniski (“Petitioners”) live at a home in Vienna, Virginia that was located at the corner of Scott Circle Southwest and Cottage Street. Vienna Town Code § 18-33.E requires the following setbacks: (i) 12’ on side yards bordering other buildings or dwellings; (ii) 25’ on side yards bordering a street; (iii) 35’ rear yards; and (iv) 25’ front yards. Petitioner have a rear deck. The left portion of the deck encroaches into the rear yard setback by 7.4 feet, but was permissible because taxes were paid on it in excess of 15 years. The Petitioners requested a variance so they could replace the right-hand portion of the deck with an enclosed 12.3’x14’ screened porch, which would encroach 10.8’ into the rear yard setback. In Petitioners’ application for a variance, they noted that the house was built diagonally on the lot in 1959, the lot is wider than it is deep, the corner of the house closest to the rear property line was 35.7’ away from the property line, and the other sides of the house would either violate the setback requirements or be challenging due to existing gas, cable, power lines, and other easements. On July 17, 2019, a public

Mendes v. Beahm, 2020 U.S. Dist. LEXIS 111986, 2020 WL 3473656 (W.D. Va. Jun. 25, 2020)

Plaintiff Nelson Mendes purchased waterfront property in Warren County, Virginia, in May 2017 with plans to open a tree nursery and eventually build a residence. Mendes’s contractors began to clear trees and other obstructions, and Mendes built a greenhouse himself. A month later, the Warren County Building Inspection Department (“Building Department”) issued a stop work order and instructed Mendes to obtain a land disturbance permit. When Mendes sought clarification, the Building Department informed him that a neighbor reported Mendes’s contractors removing vegetation and tossing it into the river, which prompted a Virginia DEQ site inspection. The neighbor later recanted her story and admitted her false report was a result of her being upset by

Sanders v. Wayne, 2020 Va. Cir. LEXIS 25 (Washington Cnty. Cir. Ct. Feb. 20, 2020)

According to Mark Sanders, Gregory Roberts, and Larissa Roberts (collectively, the “Plaintiffs”), Plaintiffs’ vehicle was slowing to avoid striking Joshua Mathis (“Mathis”) after Mathis, in operating the vehicle in front of Plaintiffs’ vehicle while in the course of his employment with Lakeside Ready Mix, LLC (“Lakeside”), slowed to turn left into a work zone without signaling. At that time, Guillermo Sanchez-Rivera’s (“Rivera”) vehicle and Alan Smith’s (“Smith”) vehicle collided with the Plaintiffs’ vehicle and each other. The Plaintiffs’ alleged that Mathis, Rivera, and Smith negligently and recklessly operated their vehicles by following too closely, failing to keep a proper lookout, failing to signal when turning, and stopping abruptly. With respect to the work zone, the Plaintiffs’ alleged that Orders Construction Company, Inc. (“Orders”) was under contract with the Virginia Department of Transportation (“VDOT”) as the general contractor and that Orders hired

Robinson v. McMurtrie (In re Peak 3 Constr., LLC), 2020 Bankr. LEXIS 833, 2020 WL 1696102 (Bankr. E.D. Va. Mar. 31, 2020)

In September 2015, Daniel McMurtrie (“McMurtrie”) and Peak 3 Construction, LLC (“Peak”) entered into a contract (the “Contract”) for Peak to renovate McMurtrie’s residence (the “Project”). Initial progress on the Project was delayed by incomplete demolition by a different contractor. Throughout Peak’s performance of the Project, the scope of the Project changed, with various changes and additions requested by McMurtrie, sometimes through Larry Cooper (“Cooper”), whom Peak perceived to be McMurtrie’s liaison, and sometimes through Mary Catlett (“Catlett”), the interior designer on the Project. These changes, in conjunction with the demolition delay, caused Peak to realize in mid-November that the Project could not be completed by Christmas. On February 9, 2016, Peak emailed McMurtrie outlining the job costs, both completed and remaining costs, based on the current scope of work. McMurtrie neither objected nor terminated the Contract. Peak continued work on the Project and, on February 15, 2016, sent McMurtrie a $106,432.45 invoice (the “First Invoice”).

In re Lansdowne Constr., LLC, 2020 Bankr. LEXIS 461, 2020 WL 930107 (Bankr. E.D. Va. Fed. 21, 2020)

In June 2016, 3 Boys, LLC (“3 Boys”) and Lansdowne Construction, LLC (“Lansdowne”) entered into a contract (the “Contract”) for Lansdowne to serve as a general contractor on the Rosner Stafford Toyota project in Stafford, Virginia. The Contract required Lansdowne to warrant with the submittal of an Application for Payment (“Pay App”) that all Work for which Certificates for Payment were previously issued and payments received from the Owner was free and clear of liens and claims in favor of subcontractors or material suppliers by reasons of having provided labor or materials relating to the Work. The Contract also gave the Architect the right to withhold payment if a lien was filed or likely would be filed and gave the Owner the right to issue joint checks to Lansdowne and any subcontractor or material supplier whom Lansdowne failed to pay.

Watts v. 350 Church St. LLC, 103 Va. Cir. 386 (Fairfax Cnty. Cir. Ct. Nov. 19, 2019)

Following delays in the construction of their new home, homeowners terminated their building contract and demanded that the builder return their deposit. When the builder refused, the homeowners filed suit under two theories of recovery: (i) violations of the Virginia Consumer Protection Act (“VCPA”); and (ii) unjust enrichment. The defendants counterclaimed for breach of contract. The plaintiffs moved to strike the defendants’ attorneys’ fees. At the end of a bench trial, the Court granted the plaintiffs’ motion to strike defendants’ attorneys’ fees because the defendants produced no evidence during the trial of attorneys’ fees.

Myrick v. Rare Hospitality Int'l, Inc., 2020 U.S. Dist. LEXIS 6227, 2020 WL 201050 (E.D. Va. Jan. 13, 2020)

Rachel Myrick (“Myrick”) was bit by a copperhead snake while dining at a restaurant and filed a complaint for common-law negligence against Southpoint II, LLC (“Southpoint”), W.J. Vakos & Company, and W.J. Vakos Management Company (collectively, the “Developers”). Myrick alleged that Southpoint acquired, designed, and developed a 264-acre property in Spotsylvania County (the “Property”) in 2001 and the Developers built a man-made storm water retention pond that bordered the restaurant. Myrick alleged that copperheads frequently hibernate in dens made of rocks and that the retention pond contained decorative boulders and plantings. Myrick alleged that the Developers knew or should have known that the retention pond and its surrounding

Freemason St. Area Ass'n v. City of Norfolk, 103 Va. Cir. 244 (City of Norfolk Cir. Ct. Oct. 21, 2019)

A property was built in 1901 in the West Freemason Section of Norfolk, Virginia (the “Grandy House”). In 1977, the City of Norfolk (“City”) established the West Freemason Historic District (the “Historic District”) and the Grandy House contributed to the Historic District. In 2015, Dr. Mark S. Sinesi (“Sinesi”) purchased the Grandy House with the intent to renovate the Grandy House. Sinesi developed construction plans and expended funds in support of this effort. On December 16, 2016, an arsonist set the house on fire, damaging the porch and the interior. Due to the damage, the City issued multiple citations to Sinesi, which required that he make certain repairs or improvements to the Grandy House. Sinesi did not make the repairs or improvements. On June

West v. Christopher Consultants, 2020 Va. Cir. LEXIS 82 (Loudoun Cnty. Cir. Ct. Jun. 10, 2020)

After moving in, new-home purchasers discovered that their home was subject to flooding. Evidence indicated that both the homeowners association (“HOA”) and the engineering firm that designed the community’s stormwater flows knew about the flooding beforehand.

EvansStarrett PLC v. Goode & Preferred Gen. Contracting Co., 2020 Va. Cir. LEXIS 80 (Fairfax Cnty. Ct. June 8, 2020)

On February 21, 2019, Donn Milton and Rebecca Bowerman (“Milton/Bowermann”), the parties against whom the law firm EvansStarrett, PLC (“EvansStarrett”) had previously represented Goode & Preferred Gen. Contracting Co. (“Goode/Preferred”) in a dispute over construction invoices, offered to resolve all disputes between Milton/Bowerman and Goode/Preferred by wiring the total of the arbitration award for damages and attorney fees ($246,985.58) to EvansStarrett’s trust account by February 28, 2019. At that time, Goode/Preferred knew that it owed EvansStarrett

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