Construction Law Insights

Van Buren v. Earl Ronald Poston & Old Meadow, LLC, 2017 Va. Cir. LEXIS 335 (Cir. Ct. Loudoun Cnty. Nov. 30, 2017)

Louise Van Buren (“Plaintiff”) filed a Complaint against Ronald Poston and Old Meadow, LLC (collectively “Defendants”) in an action to recover damages suffered due to an alleged breach of a residential construction contract between the parties. Upon purchasing a home in April 2016, Plaintiff agreed to use Poston and his company, Old Meadow, for needed renovations and repairs to the home. Old Meadow’s estimate for extensive work on the home expressly noted that any changes would be accomplished by mutually agreed upon change orders.

Chilton-Belloni v. Angle ex rel. City of Staunton, 294 Va. 328 (2017)

The Supreme Court of Virginia ruled on an appeal of two related zoning actions that had been tried together. It addressed whether the circuit court had properly relied on principles of res judicata to refuse to stay an injunction brought by the City of Staunton’s Zoning Administrator against a landowner pending further proceedings before the City’s Board of Zoning Appeals (“BZA”). It also considered whether the circuit court properly granted the injunction against the landowner. The Court concluded that the circuit court had erred and reversed and remanded the injunction.

Kalergis v. Comm’r of Highways, 294 Va. 260, 805 S.E.2d 395 (Oct. 26, 2017)

The Kalergis family (“Kalergis”) owned a farm in Albemarle County that featured certain structures which constituted improvements upon the land. In February 1994, VDOT acquired just over half of the property, which included said improvements, from the Kalergis for $1,150,000 for use in a future highway project called the Western Bypass. The price had been determined by an appraisal of the market value, which valued the land at $286,110 and the improvements at $863,890.

Johnston v. Stephan, 2017 Va. Cir. LEXIS 309 (Cir. Ct. Fairfax Cnty. Oct. 23, 2017)

The Stephans owned real property in Great Falls, Virginia, and hired a general contractor to construct a home on the property. On February 15, 2010, the general contractor and Cole (“Defendant”) entered into a subcontract pursuant to which Defendant installed a roof on the home. Three years later, the Johnstons (“Plaintiffs”) purchased the home form the Stephans. In January 2014, Plaintiffs demanded that Defendant perform further work on the roof, and Defendant declined. On April 5, 2017, Plaintiffs sued Defendant, alleging that Defendant’s refusal to work on the roof violated consumer protection law and breached an alleged contractual warranty.

Under the current law in Virginia, there is no time limit on when the Commonwealth of Virginia or any of its agencies (ex. VCU, UVA, Virginia Tech, etc.) can bring a lawsuit against contractors for alleged defects in public construction projects. The rule is that “no time runs against the king” and is codified in Virginia Code § 8.01-231 (“No statute of limitations which shall not in express terms apply to the Commonwealth shall be deemed to bar any proceeding by or on behalf of the same.”).

Uretek, ICR Midatlantic, Inc. v. Adams Robins Enters., 2017 U.S. Dist. LEXIS 205740, 2017 WL 6391489 (W.D. Va. Dec. 14, 2017)

Adams Robinson Enterprises, Inc. (“Adams Robinson”), a Kentucky corporation with its principal place of business in Ohio, and Uretek, ICR Midatlantic, Inc. (“Uretek”), a North Carolina corporation, entered into a subcontract, under which Uretek agreed to perform certain work for a construction project in Charlottesville. Adams Robinson also secured a payment bond from Liberty Mutual. The parties agreed that Ohio law would govern the subcontract and that they would submit any dispute arising under the subcontract to arbitration.

WCC Cable, Inc. v. G4S Tech., LLC, 2017 U.S. Dist. LEXIS 208728 (W.D. Va. Dec. 15, 2017)

Defendants G4S Technology LLC (“G4S”) and Liberty Mutual Insurance Company (“Liberty Mutual,” and collectively with G4S, “Defendants”) had each filed a Motion to Stay, or in the Alternative, Dismiss or Transfer, Based Upon the First-to-File Rule and a Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). Additionally, Defendants had each filed a Motion to Dismiss for Failure to State a Claim, each of which sought dismissal of plaintiff WCC Cable, Inc.’s (“WCC”) Complaint.

Emerald Point, LLC v. Hawkins, 294 Va. 544, 808 S.E.2d 384 (2017)

Plaintiff tenants lived in an apartment unit located in the Emerald Point Apartments in Virginia Beach (the “City”), which was managed by the Breeden Company, Inc. (“Breeden”) for the owner, Emerald Point, LLC. The unit was heated by a natural gas furnace. On the evening of November 26, 2012, the alarm in the carbon monoxide detector in the unit sounded. A maintenance worker sent by Breeden replaced the batteries in the device. Shortly after he left, the alarm sounded again.

U-Haul Real Estate Co. v. City Council of Falls Church, 2017 Va. Unpub. LEXIS 36 (Va. Dec. 28, 2017)

U-Haul Real Estate Company (“U-Haul”) owned property in the City of Falls Church. The land adjacent to U-Haul was owned by Northern Virginia Regional Park Authority (“NVRPA”). This land boarded a stream bed and, due to their proximity to the stream, a portion of U-Haul’s property and nearly all of NVRPS’s property are located within a resource protection area (“RPA”), as designated by the Falls Church City Code (“City Code”).

Heard Constr., Inc. v. Waterfront Marine Constr. Co., 2018 Va. Cir. LEXIS 14 (Cir. Ct. City of Chesapeake Jan. 10, 2018)

Although the opinion only refers briefly to facts related to the case, it appears that the plaintiff sued the defendant regarding a lost bid for a project for the Navy. In their motion to set aside the jury verdict, Defendants contended that the only document produced by Plaintiff at trial showed an anticipated $887,150 in lost profits, and impermissibly considered overhead as profit. Plaintiffs replied that the jury’s direct damages award was reasonably calculated and fully supported by the evidence. Plaintiff had been able to produce a bid spreadsheet and detailed testimony through its president, in support of its claim. While such evidence is weak, the jury accepted it, and it was deemed sufficient to support such award. The court denied the Defendants’ motion in this respect.

United States v. John C. Grimberg Co., 2017 U.S. Dist. LEXIS 173362, 2017 WL 4698217 (E.D. Va. Oct. 19, 2017)

A subcontractor sued the prime contractor and the contractor’s surety to recover payment for work performed on a federal construction project, including costs incurred as a result of a delay not attributable to the subcontractor’s performance. After the action was filed, prime contractor paid the subcontractor for work performed but not for costs incurred due to delay. The subcontractor then sought partial summary against the surety for its delay damages.

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