Construction Law Insights

Marroquin v. Dan Ryan Builders Mid-Atlantic, LLC, 2020 U.S. Dist. LEXIS 42300, 2020 WL 1171963 (W.D. Va. Mar. 11, 2020)

On September 23, 2017, Oscar and Olga Marroquin (the “Marroquins”) and Dan Ryan Builders Mid-Atlantic, LLC (“Dan Ryan”) entered into a contract (the “Contract”) for Dan Ryan to sell a residential home. The Marroquins signed a Limited Warranty Agreement issued by Quality Builders Warranty Corporation (“QBW”), which was attached to the Agreement of Sale. On October 31, 2017, the Marroquins took possession of the property, but alleged that it was not free from structural defects, would not pass without objection in the trade, was not constructed in a workmanlike manner, and was not fit for habitation. Between February 23, 2018 and May 3, 2018, the Frederick County Inspection Department issued a series of Correction Orders to Dan Ryan concerning the issues with the construction of the Marroquins’ home. In April 2018, the Marroquins emailed Dan Ryan a list of issues related to the home. On July 10, 2018, a building code official sent a

Comfort Sys. of Va. v. P. J. Potter Enters., 2020 Va. Cir. LEXIS 19 (City of Chesapeake Cir. Ct. Feb. 11, 2020)

Comfort Systems of Virginia, Inc., et al (“Petitioners”) engaged in an arbitration with P. J. Potter Enterprises, Inc., et al (“Respondents”). The Petitioners are located in Chesapeake and the Respondents are located in Suffolk. Prior to the final arbitration award (“Order”), a settlement agreement containing the agreement to arbitrate, a signed term sheet setting forth the particulars of the arbitration, and meetings with the arbitrator occurred in Virginia Beach. The final telephone conference resulting in the arbitrator’s issuance of the Order was held while one attorney was in South Carolina and the arbitrator was not in Virginia Beach.

Chrisley v. Dan Ryan Builders Mid-Atlantic, LLC, 2020 U.S. Dist. LEXIS 38374, 2020 WL 1066341 (W.D. Va. Mar. 5, 2020)

In March 2018, the plaintiffs sued Dan Ryan Builders Mid-Atlantic, LLC and Dan Ryan Builders West Virginia, LLC (collectively “DRB”) for negligent construction and repair of their property and for personal injuries. In August 2018, DRB filed a Third-Party Complaint against various subcontractors, including Builders FirstSource Atlantic-Group, LLC (“Builders FirstSource”); Fine Line Trim, LLC; and Cranford Contractors, Inc. In September 2018, the plaintiffs filed an Amended Complaint against the subcontractors. On January 28, 2019, Builder FirstSource filed a Fourth Party Complaint against MI Windows and Doors, Inc. (“MI Windows”). In April 2019, a Scheduling Order was entered and a jury trial was scheduled for July 27, 2020. The Scheduling Order’s deadline for parties to

W.C. English, Inc. v. Rummel, 2020 U.S. Dist. LEXIS 19042, 2020 WL 534532 (W.D. Va. Feb. 3, 2020)

W.C. English, Inc. (“English”) moved to exclude CDM Smith, Inc.’s (“CDM”) expert Robert Scheller and Rummel, Klepper & Kahl, LLP’s (“RK&K”) expert William Sibert. RK&K and CDM moved to exclude testimony by three witnesses for English: (i) Gary Galloway; (ii) Jehugh Crouch; and (iii) Bernard Davis.

McClung-Logan Equip. Co. v. Harbour Construction, Co., 2019 Va. Unpub. LEXIS 31, 2019 WL 6792473 (Va. Dec. 12. 2019)

In December 2011, McClung-Logan Equipment Company, Inc. (“McClung”) filed suit against Harbour Constructors, Co. and Cross-Land Harbour, Inc. (collectively, “Harbour”) alleging a breach of contract for failing to pay for the rental of construction equipment. In December of 2016, Harbour moved to dismiss and asked the court to enforce the contract’s forum selection clause, which provided for Maryland as the venue. The trial court stayed the Virginia proceedings for a period of six months to allow for refilling and, upon notice to the trial court of a new filing in Maryland, the Virginia proceedings would be dismissed. If, after six months, neither party filed suit in Maryland, the Virginia proceedings would be placed back on the docket for trial. Prior to the expiration of the

Caldwell-Bono v. State Bldg. Code Tech. Review Bd., 2019 Va. App. LEXIS 273 (Va. Ct. App. Nov. 26, 2019)

Deborah Caldwell-Bono and Benny Bono (the “Bonos”) own properties near the property of Kimberly Bolden and her mother (the “Boldens”) and operate an equestrian center on one of the properties. The Boldens’ property was zoned for agricultural use, but the Boldens were granted a special use permit to host weddings and other events in a converted barn. The Bonos alleged that the Boldens’ event business caused noise, traffic, and other safety risks that affected their equestrian center’s business and made it difficult to find renters. In support of their allegations, the Bonos submitted the opinion of an architect who stated the barn was a fire risk due to exposed wiring in the barn.

Brian Wishneff & Assocs. LLC v. Delshah Dev., Inc., 2019 U.S. Dist. LEXIS 194427, 2019 WL 5865939 (W.D. Va. Nov. 8, 2019)

Brian Wishneff & Associates LLC (“Wishneff”) provides tax credit consulting services to real estate developers and has offices in Roanoke and Arlington, Virginia and each of its members are a Virginia resident. Delshah Development, Inc. (“Delshah”) is a real estate development corporation based in New York City and Michael Shah is its president.

Theuer v. Norfolk Air Heating & Cooling, Inc., 2020 Va. Cir. LEXIS 190 (City of Norfolk Cir. Ct. Oct. 7, 2020)

In count four of her complaint, plaintiff Elise Theuer alleged that defendant Norfolk Air Heating & Cooling, Inc. (“Norfolk Air”) violated the Virginia Home Solicitation Sales Act (the “Act”) regarding a contract for the installation of an HVAC system for Theuer’s historic residential property in Norfolk, Virginia. According to the complaint, the first contact between the parties occurred following Theuer’s call to Norfolk Air for an appointment to discuss a ductless or “mini-splits” system for her home. During the appointment, Norfolk Air provided a typed quote dated September 25, 2017, and Theuer signed the quote on November 21, 2017. The quote did not include any notice of a right of cancellation. After Norfolk Air installed the system, it failed to operate properly, and, after multiple

SourceOne, Inc. (DE) v. ESI, Inc. of Tenn., 2020 U.S. Dist. LEXIS 133045 (E.D. Va. Jul. 27, 2020)

DuPont contracted with Veolia Energy Operating Services LLC (“Veolia”) to upgrade the utilities infrastructure at a DuPont plant in Richmond, Virginia. Veolia, in turn, contracted with SourceOne, Inc. (DE) (“SourceOne”) to handle the design, procurement, installation, and commissioning for upgrading the cogeneration plant’s burners from coal-fired to natural gas-fired. SourceOne had contracted with ESI, Inc. of Tennessee (“ESI”) to provide engineering services for the burner upgrades. The SourceOne-ESI agreement included a warranty for ESI’s work and an indemnification provision in favor of SourceOne. ESI recommended Coen Company, Inc. and John Zink to supply the new burners for the project (“suppliers”). Significant problems developed with the burners, resulting in damage to downstream superheater equipment and a decrease of the equipment life.

Cove v. Wallen, 2020 Va. Cir. LEXIS 31 (Fairfax Cnty. Cir. Ct. Mar. 11, 2020)

Plaintiffs Edward and Pamela Cover, along with Defendants Millard Wallen, III and Dianna Wallen and Jeff and Cathy Black formed LLCs for the purpose of purchasing and developing the Stonecroft Business Park (“Stonecroft Project”) in Chantilly, Virginia. Their combined business entity, Stonecroft Business Park, LLC borrowed $13,700,000 from La Jolla Bank to finance the Stonecroft Project. The loan was personally guaranteed by the Coves, Wallens, and Blacks, individually. In September 2010, the venture defaulted on the loan, and the successor bank to La Jolla filed suit in the Eastern District of Virginia seeking over $13.8 million. After the Blacks declared bankruptcy, the Coves and Wallens settled the lawsuit with the bank in late 2011. In return for releasing the Coves

Mid-Atlantic Arena, LLC v. City of Va. Beach, 2020 Va. Unpub. LEXIS 16 2020 WL 2780000 (Va. May 28, 2020)

The City of Virginia Beach (“City”) and United States Management, LLC (“USM”) entered into a development agreement (“DA”) for USM to construct an entertainment and sports arena in Virginia Beach. USM assigned its rights under the DA to Mid-Atlantic, LLC (“MAA”). As developer, MAA had to construct the arena in accordance with a master plan and obtain financing for the endeavor. The City offered to lease some of its most valuable real estate for the arena, provide $78 million in infrastructure improvements to support the arena, and significant tax incentives. The City retained the right to approve MAA’s construction loan commitment and documents evidencing and securing the construction loan (the “Construction Loan Documents”). The City’s review and

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