Justia Civil Procedure Opinion Summaries

In 2007, the Sonoma County project’s owner sued Hearn, the general contractor, Second Generation, the roofer, and other subcontractors for design and construction defects. Hearn cross-complained against Second Generation and others. In 2009, Hearn assigned its interests under its subcontracts to two insurers, North American and RSUI. Hearn then settled with the owner and all but two subcontractors, one of which was Second Generation. Hearn filed an amended cross-complaint, purportedly in the name of the insurers, against those subcontractors, adding breach of a contractual obligation to obtain insurance and seeking equitable contribution for Hearn’s defense costs premised on a breach of that duty. In 2013, the court dismissed the cross-complaint against Second Generation on procedural grounds, awarded $30,256.79 in costs and granted prevailing party attorney fees of $179,119. Second Generation moved to amend the orders to name North American as a judgment debtor owing the amounts awarded against Hearn. The trial court denied the motion, stating: Hearn remains the only proper party and that the subcontractor’s exclusive remedy was to pursue a separate action against Hearn’s insurers. The court of appeal reversed, finding that, after the assignment, Hearn was “out of this case.” View "Hearn Pac. Corp. v. Second Generation Roofing, Inc." on Justia Law

In 2011, Henderson Square Condominium Association sued, alleging: breach of the implied warranty of habitability, fraud, negligence, breach of the Chicago Municipal Code’s prohibition against misrepresenting material facts in marketing and selling real estate, and breach of a fiduciary duty. The defendants were developers that entered into a contract with the city for a mixed use project, the Lincoln-Belmont-Ashland Redevelopment Project. Sales in the project had begun in 1996. The trial court dismissed, finding that plaintiffs failed to adequately plead the Chicago Municipal Code violation and breach of fiduciary duty and that counts were time-barred under the Code of Civil Procedure (735 ILCS 5/13-214). The appellate court reversed. The Illinois Supreme Court affirmed. A condominium association generally has standing to pursue claims that affect the unit owners or the common elements. A question of fact remains as to whether defendants’ failure to speak about construction deficiencies or to adequately fund reserves, coupled with earlier alleged misrepresentations, amounted to fraudulent concealment for purposes of exceptions to the limitation and repose periods. It is possible that minor repairs, along with the limited nature of water infiltration, reasonably delayed plaintiffs’ hiring of professional contractors to open the wall and discover latent defects. The date when plaintiffs reasonably should have known that an injury occurred and that it was wrongfully caused was a question of fact. View "Henderson Square Condo. Ass'n v. LAB Townhomes, LLC" on Justia Law

Respondents Mesiti Development, Inc., JVL Construction Company, Inc., and Brook Hollow Corporation, appealed a superior court order dismissing their counterclaims against petitioner Town of Londonderry. In 2012, the Town filed a bill of interpleader to determine whether $264,517.02 in surplus impact fees collected under the Town’s impact fee ordinance should have been refunded to the developers who paid the impact fees or to the current owners of the properties for which the fees had been paid. Although the Town’s impact fee ordinance specifies that the current owners are entitled to the refunds, the Town sought to confirm that the ordinance is consistent with the impact fee statute. The bill listed seventeen properties and their respective impact fee payors and current owners. Additional parties intervened thereafter. Several parties, including the respondents, moved to add counterclaims alleging, among other things: (1) violations of RSA 674:21, V; (2) negligence; (3) violation of fiduciary duties owed to impact fee payors; (4) violation of the public trust in government; and (5) violation of the municipal budget law. The Town filed a motion to dismiss these counterclaims, which the trial court granted. This appeal followed. Finding no reversible error in the order dismissing these claims, the Supreme Court affirmed. View "Town of Londonderry v. Mesiti Development, Inc." on Justia Law

Zachary Johnson and Margie Johnson contracted with Buskohl Construction Inc. as a general contractor to oversee the construction of their new house. John Buskohl was the sole shareholder, officer, and director of Buskohl Construction Inc. Due to a deteriorating relationship with the Johnsons, Buskohl walked off the job before construction was complete, leaving various "odds-and-ends" unfinished on the house. The Johnsons repaired some of the alleged deficiencies themselves and solicited bids from various contractors to fix the remaining issues. The Johnsons sued Buskohl alleging Buskohl negligently constructed the house, breached the contract, and breached the warranty to construct the house in a workmanlike manner. The jury returned a verdict in favor of the Johnsons. Buskohl moved for a new trial under N.D.R.Civ.P. 59(b), arguing irregularities in the proceedings prevented him from receiving a fair trial. The district court denied the motion. On appeal, Buskohl argued the district court abused its discretion by denying a new trial because the district court erred by: (1) failing to provide a special verdict form that categorically itemized damages; (2) allowing hearsay into evidence; (3) excluding Buskohl's expert from testifying; and (4) denying Buskohl's motion for mistrial based on improper closing argument. After review, the Supreme Court concluded the district court erred in admitting hearsay evidence that did not fall within an exclusion or exception. Accordingly, the Court reversed the district court's judgment and remanded for a new trial, because the district court's error affected Buskohl's substantial right to a fair trial. View "Johnson v. Buskohl Construction, Inc." on Justia Law

Henderson Square Condominium Association sued the developers, alleging: breach of the implied warranty of habitability, fraud, negligence, breach of the Chicago Municipal Code’s prohibition against misrepresenting material facts in the course of marketing and selling real estate. The court dismissed with prejudice, finding that plaintiffs failed to adequately plead the Chicago Municipal Code violation and breach of fiduciary duty and that those counts were time-barred. The appellate court reversed the dismissal of those counts and the Illinois Supreme Court affirmed. The claims at issue are construction-related and governed by the limitation and repose of section 13-214 of the Code of Civil Procedure, but the fraud exception applied and issues of material fact remained concerning misrepresentations or actions that could support a finding of fraudulent concealment. The defendants were alleged to be “more than silent” regarding insulation and funding of the reserves. The Municipal Code allows private parties to seek damages under its provisions and there were allegations that defendants had a fiduciary duty to budget for reasonable reserves, given allegedly known latent defects. View "Henderson Square Condo. Assoc'n v. LAB Townhomes, LLC" on Justia Law

HKS a Texas architecture firm, provided services for a luxury hotel in Mammoth Lakes under an Agreement that contained a Texas forum selection clause, requiring mediation, and a Texas choice of law provision.The Agreement authorized HKS to hire “[c]onsultants.” Vita, a California landscape design firm, submitted to HKS a Contract incorporating the terms of the Agreement. Neither Vita or HKS signed the Contract, but Vita performed work in 2008, during the “design phase” and sent invoices to HKS. Owner began having financial problems before construction commenced, leaving HKS with unpaid bills for its own services and those provided by “consultants.” HKS obtained a judgment against Owner in 2010 in Texas for $1,617,073.70 but was unable to recover anything. In 2013, Vita sued HKS, alleging breach of contract; unjust enrichment; quantum meruit; and breach of the implied covenant of good faith and fair dealing, seeking $370,650.53. After answering the complaint, HKS moved to enforce the forum selection clause and dismiss. The court of appeal reversed dismissal. HKS established the existence of a contract between HKS and Vita containing a forum selection clause, but Code of Civil Procedure 410.42 prohibits enforcement of construction contract provisions requiring disputes between contractors and California subcontractors to be litigated outside California. View "Vita Planning & Landscape Architecture, Inc. v. HKS Architects, Inc." on Justia Law

Wayne Kelly was killed while working at a construction site in Hattiesburg. His family sued, among other defendants, Hanco Corporation, Inc., the general contractor for the project on which Wayne Kelly had been working at the time he died, and American Air Specialists of Mississippi, Inc., the subcontractor that had leased the services of Kelly and his coworkers from Landrum Professional Employer Services, Inc. The Kellys and Hanco/American Air moved separately for summary judgment. The circuit court denied summary judgment to Hanco and American Air. Hanco filed a petition for interlocutory appeal and the Kellys filed a cross-petition for interlocutory appeal. The Supreme Court granted interlocutory appeal and consolidated the cases. After review, the Court affirmed the denial of summary judgment because Hanco waived its exclusive-remedy affirmative defense despite section 71-3-6 of the Mississippi Workers' Compensation Act provided an exclusive remedy to claimants for on-the-job injuries. View "Hanco Corporation v. Goldman" on Justia Law

This action was brought by Inn By the Sea Homeowner’s Association, Inc. (“IBTS”) against various defendants involved in the development, design, and construction of Inn By the Sea Condominiums when the condominiums were rebuilt after being destroyed by Hurricane Katrina. Within a year of reconstruction, significant problems with the building began to manifest, problems allegedly related to defects in the design and construction of the property. The trial court granted summary judgment to the defendants after excluding the damages testimony of IBTS’s expert witnesses. IBTS hired Michael Bailey of Kyle Associates, LLC, as its expert structural engineer and Alfred Hayes of Hayes Architect as its expert architect to investigate and identify defects in the design and construction of the property. IBTS timely designated its experts and produced a copy of the witnesses’ reports and cost estimates. In late August 2012, IBTS learned that Michael Bailey had suddenly left his job, moved out town, and could not be located or further made available as an expert on this case. At a subsequent hearing, the trial court orally continued the case without a new trial date in order for IBTS to find a new engineering expert. IBTS hired Ashton Avegno to replace Bailey. Avegno provided his report on November 2, 2012. In addition to largely agreeing with Bailey’s original report, Avegno also expressed concern that the foundation pilings “as designed” were overloaded by as much as “2.82 times its safe capacity and the as built piling would be loaded 2.16 times its capacity.” Avegno was unwilling, however, to provided exact itemized cost estimates for the items of engineering defects he identified. IBTS informed the court that IBTS had been unable to depose any of the defendants’ witnesses, including any of the defendants, and that a new scheduling order should be issued to allow IBTS to conduct depositions and to seasonably supplement its expert reports. The defendants objected to the proposed new scheduling order, arguing that the deadline for expert designations had passed and that Avegno should not be allowed to offer any new opinions, including his opinion that the foundation piles were overloaded. The court granted the motion to exclude Avegno. At some point, Hayes was asked to supplement his report. The defendants moved to strike Hayes’s supplementation and renewed their motion for summary judgment. The court granted the defendants’ motion to exclude Alfred Hayes’s damages testimony as well as the defendant’s motion for summary judgment and final judgment. Inn By the Sea timely appealed. Upon review, the Supreme Court concluded that the trial court did not abuse its discretion in excluding the plaintiff’s witnesses, and therefore affirmed the grant of summary judgment. View "Inn By The Sea Homeowner's Association, Inc. v. SeaInn, LLC" on Justia Law

A homeowner sued a general contractor for allegedly shoddy and incomplete work in connection with a major home remodeling contract. The homeowner’s complaint also contained a cause of action against the general contractor’s license bond company, seeking to recover for the contractor’s having “grossly deviated” from the plans and specifications for the job. To support his action, the homeowner explicitly alleged in the complaint that the contractor was licensed at all times. The contractor cross-complained against the homeowner for unpaid work. The cross-complaint included a copy of their written contract which showed the contractor’s license number. To that, the homeowner simply filed a general denial of all allegations. When the case came to trial, the homeowner (contrary to the applicable local rule requiring plaintiffs to identify all controverted issues) did not identify licensure as a controverted issue. The contractor’s attorney did not obtain a verified certificate from the Contractors’ State License Board showing the contractor was licensed at all times during his performance. But when the contractor was about to rest his case on the cross-complaint, the homeowner’s attorney made a motion for nonsuit based on the absence of such a verified certificate as required under Business and Professions Code section 7031, subdivision (d). The trial judge deferred immediate ruling on the homeowner’s nonsuit motion. "As the contractor learned to his chagrin, it [...] takes at least six days to obtain a verified certificate from the License Board even if one drives overnight to Sacramento to pick it up in person." While the contractor was eventually able to obtain a verified certificate of licensure from the License Board, he could not do so until after the close of the trial, in which he prevailed on his claim for unpaid work from the homeowner. Because no certificate of licensure could be produced, the trial judge reluctantly granted the homeowner’s nonsuit motion, by judgment notwithstanding the verdict (JNOV). This appeal followed. After review, the Court of Appeal reversed that judgment in favor of the homeowner, with instructions to the trial judge to grant judgment in favor of the general contractor as against the homeowner. "We conclude this is one of those relatively rare cases where a party can be bound by a judicial admission made in an unverified complaint. Here, the judicial admission that the general contractor was licensed, compounded by the homeowner’s failure to comply with the local rule requiring identification of all controverted issues, rendered the question of licensure assuredly uncontroverted for purposes of section 7031. Because of the judicial admission, the rule of 'Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc.' (153 Cal.App.4th 621 (2007)) does not apply." View "Womack v. Lovell" on Justia Law

At issue in this residential construction dispute was whether the statutory cap on exemplary damages is waived if not pleaded as an affirmative defense or avoidance. The trial court affirmed an exemplary damages award in excess of the statutory cap because Petitioner did not assert the cap until her motion for a new trial. The court of appeals affirmed the exemplary damages award, concluding that the statutory cap on exemplary damages did not apply because Petitioner failed to expressly plead the cap as an affirmative defense. The Supreme Court (1) reversed the court of appeals’ judgment in relation to the exemplary cap, holding (i) the exemplary damages cap is not a matter ”constituting an avoidance or affirmative defense” and need not be affirmatively pleaded because it applies automatically when invoked and does not require proof of additional facts, and (ii) because Petitioner timely asserted the cap in her motion for new trial, the exemplary damages must be capped at $200,000; and (2) affirmed in all other respects. View "Zorilla v. Aypco Constr. II, LLC" on Justia Law