Mealey's Construction Defects : Mealey's : Legal News & Analysis

Mealey's Construction Defects

August 04, 2022
Judge In Champlain Towers Allows Attorney Fees Applications For Damage Claims

MIAMI — A Florida judge overseeing the more than $1 billion class settlement in the consolidated complaint over the June 2021 partial collapse of the Champlain Towers South (CTS) condominium building in Surfside, Fla., issued a sua sponte order on Aug. 3 permitting attorneys helping class members present damage claims to apply to the court for attorney fees and costs but reminded the attorneys that no fees or costs may be requested from class members.
August 03, 2022
Homebuilder Appeals To Texas High Court Over ‘Gateway’ Arbitration Decision

AUSTIN, Texas — The lower courts incorrectly ruled that nonsignatory children of homebuyers could not be compelled to arbitrate personal injury claims after the homebuilder’s motion to compel was dismissed because the children were not third-party beneficiaries to the purchase agreement signed between the parents and the homebuilder, the homebuilder tells the Texas Supreme Court in a May 25 reply brief on the merits.
August 02, 2022
Homeowners Seek Remand Of Water Damage Suit Based On Local Controversy Exception

CHARLESTON, S.C. — Homeowners claiming that the improper installation of the roofs on their homes has caused water damage filed a reply on July 22 in a federal court in South Carolina arguing that their putative class complaint should be remanded pursuant to the Class Action Fairness Act (CAFA) local controversy exception based on their evidence that more than two-thirds of the proposed class members are citizens of that state.
August 01, 2022
Wisconsin Panel: Remedial Work Doesn’t Trigger New Date For Statute Of Repose

MADISON, Wis. — A Wisconsin appeals court panel on July 21 affirmed a trial court’s dismissal of construction defects claims brought by the owners of an indoor water park, finding that the claims are barred because the allegedly negligent work was remedial, not new, and was completed more than 10 years before the owner filed suit.
August 01, 2022
Conn. Judge Denies Summary Judgment After Caulking Company Fails To Cite Evidence

HARTFORD, Conn. — A Connecticut judge on July 20 denied a caulking company’s motion to strike and motion for summary judgment, finding that the plaintiff company “only barely” pleaded its claims and that the caulking company failed to point to any evidence that showed the absence of a genuine issue of material fact regarding the claims over the allegedly defective installation of a metal frame in a construction project.
August 01, 2022
Subcontractor Argues Mediation Was Required By Contract In Appeal To 9th Circuit

SAN FRANCISCO — A subcontractor hired to install insulation over fireproofing on July 18 filed the opening brief in an appeal of a federal judge’s decision to deny its motion for judgment as a matter of law to the Ninth U.S. Circuit Court of Appeals, arguing that it was entitled to the remedy after the other party to the contract failed to comply with its prelitigation mediation requirement.
July 29, 2022
Contractual Claims Survive In Insurance Dispute Over Pole Barn Construction

BISMARCK, N.D. — A federal judge in North Dakota on July 27 ruled that a manufacturer of pole barns and the subcontractor it hired to construct a pole barn that was destroyed in a storm are not entitled to summary judgment on claims brought against them by an insurer for breach of contract and breach of implied warranty of fitness because genuine issues of material fact exist as to each claim.
July 29, 2022
N.J. Panel Affirms Dismissal Of Hotel Construction Suit Filed In Successive Case

JERSEY CITY, N.J. — A New Jersey appellate panel on July 19 affirmed a trial court’s dismissal of a construction defects complaint under the entire controversy doctrine because the realty company that filed the complaint failed to name the defendant contractors, engineers and architects as third-party defendants in a separate case based on the same transactional facts concerning the construction of a hotel.
July 27, 2022
Delaware Homeowner’s Defects Complaint Dismissed For 4th Time Under Res Judicata

WILMINGTON, Del. — A Delaware judge on July 12 dismissed a homeowner’s complaint for allegedly defective construction of parts of his home, finding that res judicata precluded his claims because he previously brought the same issues against the same defendants.
July 27, 2022
Maryland Panel: State Board Correct To Bar University From Recovering Carpet Costs

ANNAPOLIS, Md. — A panel of the Maryland Court of Special Appeals on July 19 held that the State Board of Contract Appeals did not err when it found that a state university forfeited its right to recover the costs incurred in remediating allegedly defective carpet and carpet padding because it did not first comply with the written notice requirement in the contract between it and the contractor hired to install the carpet.
July 25, 2022
Federal Judge Refuses To Certify Homeowner’s Questions After ‘Forum Manipulation’

MOBILE, Ala. — A federal judge in Alabama on July 7 denied a homeowner and general contractor’s motion to certify three questions about federal jurisdiction for interlocutory appeal, finding that the movants failed to meet their burden for certification after determining that the two engaged in forum manipulation by removing their federal warranty claim in an attempt to get the case remanded to state court.
July 21, 2022
Federal Judge: Builder Can’t Compel Arbitration After Using ‘Litigation Machinery’

ASHEVILLE, N.C. — A federal judge in North Carolina on July 14 denied a homebuilder’s motion to dismiss a homeowning couple’s faulty construction counterclaims and to compel arbitration after finding that the builder waived its right to arbitration by using the court’s “litigation machinery” to such an extent that compelling arbitration would prejudice the couple, who started a website describing the company’s business practices.
July 21, 2022
3rd Circuit Affirms Dismissal Of Grenfell Tower Case For More Convenient Forum

PHILADELPHIA — On appeal of a lawsuit brought by former residents of London’s Grenfell Tower, which caught fire in 2017, a Third Circuit U.S. Court of Appeals panel on July 8 affirmed a lower court’s decision to dismiss the products liability case under the doctrine of forum non conveniens but reversed the imposition of a condition placed on the dismissal.
July 07, 2022
N.C. Panel Affirms Townhome Association’s Lack Of Standing For Construction Claims

RALEIGH, N.C. — A North Carolina appellate court on July 5 affirmed a trial court’s order dismissing a townhome association’s negligence and breach of warranty claims against a builder in a suit resulting from alleged defects in the townhomes’ construction, finding that the panel lacked the authority to overturn the court’s previous decision on standing.
June 29, 2022
Vermont Judge: Contractor’s Work Was Defective But Not Willfully Misrepresented

MONTPELIER, Vt. — A Vermont judge on May 31 found that a contractor breached its contract and implied warranty and awarded a homeowner $44,232.95 in damages and prejudgment interest; however, the judge said the contractor did not violate the covenant of good faith and fair dealing or state consumer protection laws because the contractor did not voluntarily cause defects or willfully misrepresent its services when it damaged hardwood flooring and defectively installed a wall and light fixtures during the renovation of a carriage barn.
June 29, 2022
South Carolina Panel: Condo Owners Were On Notice When HOA Failed To File Claim

COLUMBIA, S.C. — Condominium owners admitted to having notice of the running of the statute of limitations when they were notified that the homeowners association failed to timely file construction defects claims for water intrusion, a South Carolina panel found June 22, affirming the lower court’s dismissal of the owners’ claims of negligence as time-barred.
June 29, 2022
Homeowners, Builder File Joint Stipulated Dismissal Of Contract Claims After Trial

CHICAGO — Following a trial in which a federal jury in Illinois entered a verdict for homeowners on a breach of contract claim related to the sales agreement but for the builder on the homeowners’ consumer fraud claim, the parties filed a joint stipulated dismissal of all claims with prejudice on June 1 and the judge ordered that the case remain closed the next day.
June 29, 2022
Dueling Oppositions Filed In Defects Suit Following $12.9M Jury Verdict

GEORGETOWN, Del. — In the first of two separate oppositions filed June 8 in a Delaware court, a builder found liable by a jury for $12.9 million in damages to a condominium association and its owners opposed the plaintiffs’ request for costs and fees while in the second, the plaintiffs opposed the builder’s renewed motion for judgment as a matter of law.
June 29, 2022
Federal Judge Denies Judgment Motion In Senior Homes ADA Design Violation Suit

ALLENTOWN, Pa. — A Pennsylvania federal judge on June 22 denied an architectural firm’s motion for judgment on the pleadings in a suit brought by the U.S. government against the owners of senior homes and the architects who designed them alleging failure to meet the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) requirements, finding that because the government “brings a single pattern or practice claim under each statute, the federal limitations period for suits to collect civil penalties poses no obstacle.”
June 29, 2022
Georgia Panel: Construction Company Liable For Repairs But Sole Owner Isn’t

ATLANTA — A Georgia appellate panel on June 15 affirmed a trial court’s decision to award damages for the cost of repairs of a newly built home to a homeowning couple because the estimates of the costs were adequately supported by inspection reports and expert testimony from an engineer despite multiple assertions of error by a construction company that was found liable but whose owner was not.
June 29, 2022
North Carolina Panel Denies Homeowners’ 2nd Writ Of Supersedeas, Stay Application

RALEIGH, N.C. — The North Carolina Court of Appeals on June 9 denied for a second time an application for a writ of supersedeas and stay filed by homeowners while appealing a trial court’s award of attorney fees to their contractor after dismissing the homeowners’ construction fraud case.
June 29, 2022
Louisiana Panel Affirms Summary Judgment For Developers On Fraud Claims

BATON ROUGE, La. — A putative class of homeowners’ appeals were denied June 14 by a Louisiana appellate panel that found that the evidence was not enough to prove a genuine issue of material fact about whether the developers of a subdivision committed fraud or conspiracy when building a subdivision that regularly floods in heavy rains.
June 29, 2022
Federal Judge: Federal Rules Can’t Trump Master Deed’s Standing Provision

CHARLESTON, S.C. — Federal rules governing derivative actions do not allow townhome owners to bypass a provision in their master deed that prohibits them from filing suit against the developer without authorization of 67% of the total owners, a South Carolina federal judge ruled June 13 in denying the owners’ motion to reconsider dismissal of their action against the developer for damage allegedly caused by excess humidity and moisture.
June 28, 2022
$1B Champlain Towers Class Settlement Approved; Claims Hearings Begin In July

MIAMI — A Florida judge on June 24 issued an order granting final approval of a more than $1 billion class settlement in the consolidated putative class complaint filed by Champlain Towers South (CTS) condominium unit owners, residents and visitors and estates of those who died after the Surfside, Fla., building partially collapsed June 24, 2021.
June 28, 2022
Delaware Judge: Statute Of Limitations Began After Construction Claims Were Filed

NEW CASTLE, Del. — A Delaware judge on June 9 granted a condominium owners association’s motion for partial summary judgment in a construction defects case, finding that the suit was not barred by the statute of limitations because the complaint was filed before the condominium association was created or had its first meeting.