Originally posted 2012-07-09 09:00:04.
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You hear about burden of proof a lot in criminal cases. We hear it on TV and in the news on a regular basis. We hear it so often that it can be easy to forget that proof is a part of every dispute and/or trial, including those in my area of practice, construction law. Even in this area of the law, sometimes the truth of what happened and what you can prove happened (so that you can recover or defend) fail to coincide.
On numerous occasions, I spend time with clients and potential clients discussing this fact. As much as I try and emphasize talking to me, or another construction lawyer, early on and on a regular basis, much of my practice involves putting the pieces back together after the fact. Often I only get called once a dispute is to the breaking point. This fact of life leaves me, or any other attorney, with only those tools that his or her client gives me.
Documents, memory, e-mails, and specifically, the constructi..
Originally posted 2010-10-18 09:00:54.
As I sit here and contemplate the almost 1 year of Construction Law Musings, I realized that I have not ever really explained why I like what I do. If you had asked me in law school if I was looking to be a construction lawyer, I likely would have looked at you as if you were from another planet. I knew I wanted to get into court but that was about it.
The fact is, I basically fell into construction without much planning ahead. I worked at the Office of the Attorney General of Virginia out of law school representing the Virginia Department of Corrections. After close to 5 years of helping out the VDOC and fielding inmate law suits, I decided to take the plunge into private practice. I worked at Meyer, Goergen & Marrs, a small firm here in Richmond, VA that represented many construction suppliers, general contractors and subcontractors. After almost 4 years there, I moved to DurretteBradshaw, PLC and then to my present solo practice at The Law Of..
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Back in 2015, the Virginia General Assembly amended the mechanic’s lien statute (Va. Code 43-3) here in Virginia to preclude any contractual provision that diminishes a subcontractor or supplier’s “lien rights in a contract in advance of furnishing any labor, services, or materials.” However, this amendment was only applicable to subcontractors and suppliers. For political and other reasons, general contractors in Virginia were left out of this change. This omission by the legislature put Virginia general contractors in the position of potentially being forced by project owners to waive their mechanic’s lien rights without the ability to run that risk down stream to their subcontractors and suppliers.
A recent bill enrolled during this legislative session, HB823, provides some remedy to this inconsistency. This bill (a .pdf of which can be obtained here) amends Virginia Code 43-3 and Virginia Code 43-21 to effectively preclude full contractual waiver of lien righ..
I have spoken on several occasions here at Construction Law Musings about the interplay (or lack thereof) between fraud and contract as it relates to construction in Virginia. The general rule is that fraud and contract claims don’t mix and a fraud claim in the face of a contractual one is likely to be dismissed. However, there are exceptions to this rule as there are to just about every legal rule (we construction lawyers would be out of a job without them).
A good examination of the interplay between fraud and contract was set out by the Eastern District of Virginia federal court in Zuberi et al v. Hirezi et al. In that case the Zuberis purchased a home from the Hirezis and later filed suit alleging that the Hirezis concealed serious structural defects that made the house uninhabitable and unsellable. Among the many claims by the Zuberis were those fro fraud, fraudulent inducement, constructive fraud, negligence per se, violation of the Virginia Consumer Protection Act, and civil co..
Originally posted 2012-08-24 11:36:29.
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Here at Construction Law Musings, we’ve discussed the Dragas line of cases relating to Chinese Drywall. In those cases (for more, just plug in the word “Dragas” into the search field to the right of this post), the Court analyzed the insurance implications of remedial measures relating to Chinese Drywall. In sum, the Court admonished the contractors to make sure that they followed the terms of their insurance contracts and essentially denied coverage to a contractor that acted proactively to fix some of the issues with the drywall.
In a new case out of the Suffolk Circuit Court, Seeman v. Oxfordshire LLC, the Court analyzed a different aspect of these types of claims. Among the claims that the Suffolk County, Virginia Circuit Court analyzed in its opinion were claims under the Virgina Consumer Protection Act and claims for tort against the realty company and the drywall supplier. Both of these parties to the case demurred (..
Originally posted 2014-07-09 09:44:02.
The Federal Miller Act is a great tool that subcontractors and suppliers on Federal projects can use for collection of wrongfully withheld amounts due. However, as a recent federal case from the Eastern District of Virginia points out, the construction contract’s terms affect when a subcontractor or supplier can use this great collection tool and how much it can recover.
In Aarow v Travelers the Court looked at the interaction between a typical termination clause, a “pay when paid” clause, and the Miller Act. The key facts are these. The general contractor on the project at issue, Syska, did not get paid some disputed amounts by the owner and subsequently did not pay Aarow, the plaintiff and a subcontractor on the project. Aarow then refused to continue work and was terminated by Syska who then took over the completion of the work. Aarow sued, seeking damages for the value of its work prior to the termination. Travellers, the surety defended sta..
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There are many moving parts on a commercial construction project. These range from site surveys to weather events to ordering materials. On most large construction projects, the prime contract and subcontracts are generally drafted ahead of time and hopefully reviewed by both in house personnel and an experienced construction attorney. However, there are situations, particularly where the contract may be one for service or provision of materials where individual purchase orders are issued as opposed to what would likely be looked at as a long form subcontract.
A case out of the Eastern District of Virginia serves as a reminder that these Terms and Conditions can create binding obligations and should be carefully reviewed and objections or changes made to them if you don’t want a court to hold you to them. In Quality Plus Services, Inc. v. AGY Aiken LLC, the Court considered both a course of conduct between the parties and the terms and conditions of the purch..
Originally posted 2011-05-13 09:00:32. Republished by Blog Post Promoter
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The Virginia Circuit Courts made a couple of interesting rulings published this month that I thought you should know about. They both emphasize the need to carefully read and analyze statutes and contracts.
The first, Meeks Disposal Corp. v. Circle South, LLC, comes from the Norfolk Virginia Circuit Court and discusses one of Construction Law Musings’ favorite topics, mechanic’s liens. In Circle South, Meeks Disposal filed a mechanic’s lien memorandum and sent proper notice to Circle South. This one seems easy, right? Wrong.
The twist here is that the Norfolk clerk’s office did not record the lien at the time it was filed. Because the Virginia mechanic’s lien statute requires such recordation, Circle South moved for summary judgment arguing that the lien was invalid. The Norfolk court disagreed in part and denied the motion for summary judgment. The Court stated that the lien was perfected ..
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Well, I’m back and hope to have a more consistent publishing schedule moving forward. I appreciate the continued readership through what has been a busy time for my solo construction practice over the last couple of months. Now, back to our program. . .
Here at Construction Law Musings, I have often beaten the drum of a solid contract that leaves as little as possible to chance or the dreaded “grey areas” where we construction lawyers like to make money. An example of the issues that can arise from ambiguity can be found in a case from 2017 in the Western District of Virginia, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al
In this case, English, a general contractor, entered into a contract for Quality Assurance (QA) functions with RK&K, the defendant, on a contract English entered into with the Virginia Department of Transportation (VDOT). Needless to say, because this would not be a post at Musings otherwise, there were issues with the QA performe..
Originally posted 2013-11-22 09:06:09. Republished by Blog Post Promoter
For this week’s Guest Post Friday here at Musings, we welcome a new face and newly solo attorney, Lee Stephens. Lee (@leestephenslaw) has represented dozens of landowners who successfully placed conservation easements on their property, ranging from a farm of 1,800 acres to a lot of 0.85 acres, all over the Commonwealth. Lee currently sits on numerous boards around Virginia and serves as counsel to Northern Neck Land Conservancy. Lee graduated from University of Virginia (1979), served as a surface warfare officer in U.S. Navy (1979-’84), studied law at William & Mary (1987), and was President of The Tides Inn (1989-2001). Lee headed up the Irvington office of Spotts Fain as a shareholder until…yesterday! June 1, 2012 is the first day of his new firm, Lee Stephens Law, PLC.
You may have heard of a “conservation easement” and the benefits or problems that landowners have realized. These legal instruments are poten..