Construction Law Insights

Radiance Capital Receivables v. Foster, 2019 Va. LEXIS 135 (Va. Oct. 24, 2019)

On February 21, 2006, Robert D. Foster (“Foster”) and Wilson Building, LLC (“Wilson Building”) executed a promissory note in favor of New South Federal Savings Bank (“New South”) based on a construction loan. On March 2, 2006, Foster and James M. Wilson (“Wilson”) executed a Continuing Guaranty agreement (“Guaranty”) with New South in which they personally guaranteed and promised to pay all of Wilson Building’s debt. In the Guaranty, Foster and Wilson agreed to “waive[] the benefit of any statute of limitations or other defenses affecting the … Guarantor’s liability” under the agreement. Wilson Building eventually defaulted on the promissory note and notice of default and demand for payment was sent to Foster and Wilson on August 27, 2010. On November 23, 2015, Radiance Capital Receivables Fourteen, LLC (“Radiance Capital”), the assignee of New South and holder of the promissory note and Guaranty, filed a complaint against

Faneuil, Inc. v. 3M Co., No. 181202, 2019 WL 4891274 (Va. Oct. 3, 2019)

Plaintiff Faneuil, Inc. (“Faneuil”) entered into a subcontract with 3M Company (“3M”) to provide customer services in support of 3M’s contract with Elizabeth River Crossings Opco, LLC (“ERC”) to assess and collect tolls at facilities between Norfolk and Portsmouth, Virginia. Under the contract between Faneuil and 3M, 3M agreed to pay Faneuil $2.52 million in annual base compensation in equal monthly payments; 3M could reduce those base payments for a fiscal quarter if the previous quarter included fewer than expected toll transactions; 3M must reimburse Faneuil for

James River Stucco, Inc. v. Monticello Overlook Owners’ Ass’n, No. CL16-408, 2019 Va. Cir. LEXIS 468 (Cir. Ct. Sep. 30, 2019)

In the case-in-chief, plaintiff, James River Stucco, Inc. (“James River”), alleged that defendant, Monticello Overlook Owners’ Association (“Monticello”), breached their Agreement (“Agreement” or “Contract”) by failing to pay its outstanding balance. Monticello counterclaimed that James River had itself breached first by hiring subcontractors, thereby failing to staff the job with a sufficient number of appropriately skilled “employees” as the Contract provided. Id. The Court held that the Contract did not require James River to use only workers who were on its own payroll.

W. C. English, Inc. v. Rummel, Klepper & Kahl, LLP, 934 F.3d 398 (4th Cir. 2019)

W.C. English, Inc. (“English”) contracted with Virginia Department of Transportation (“VDOT”) to construct a bridge over Interstate 81 near Lexington, Virginia. English subcontracted with Rummel, Klepper, & Kahl, LLP (“RK&K”) to provide project quality assurance services and with CDM Smith, Inc. (“CDM”) to provide project quality control services.

Cacheris v. City Council of Alexandria, 2019 Va. Cir. LEXIS 443 (Cir. Ct. City of Alexandria Aug. 13, 2019)

The Alexandria School Board (“School Board”) decided that the City of Alexandria’s (“City”) T.C. Williams High School’s (“School”) athletic stadium needed improvement, including the addition of stadium lighting and a new speaker system. The City Council of the City of Alexandria (“City Council”) approved a Development Special use Permit (“DSUP”) that allowed the School Board to install and use the lighting and speaker systems. The Zoning Ordinance approval process mandated that the City Council, acting upon the DSUP, consider the effects of the improvements on neighboring properties and act to minimize any adverse effects the use provided for in the DSUP may have on those properties. Homeowners with properties adjacent to the stadium sought declaratory and injunctive relief to challenge the granting of the DSUP, arguing that the Council failed to consider the factors set forth in the Zoning Ordinance that provide for the protection of neighboring properties. The defendants demurred.

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