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Preview: LexisNexis® Mealey's™ Construction Defects Legal News

LexisNexis® Mealey's™ Construction Defects Legal News

Headline Construction Defects Legal News from LexisNexis®


California High Court: Defects Suit Subject To Prelitigation Dispute Resolution
SAN FRANCISCO - The prelitigation requirements established under California's Right to Repair Act apply to an economic loss and property damage lawsuit brought by homeowners against the builder of 37 homes, the California Supreme Court ruled Jan. 18 in affirming a ruling staying the suit subject to the builder's ability to remedy the alleged defects (McMillin Albany LLC v. Superior Court of Kern County, No. S229762, Calif. Sup., 2018 Calif. LEXIS 211).

Massachusetts High Court Reverses Ruling Dismissing Board's Defects Suit
BOSTON - A condominium association board of trustees can pursue a construction defects claim against a developer, a panel of the Massachusetts Supreme Judicial Court ruled Jan. 19, holding that a bylaw in the condominium bylaws requiring the board to obtain the approval of 80 percent of the unit owners was against public policy (Trustees of the Cambridge Point Condominium Trust v. Cambridge Point LLC, No. SJC-12327, Mass. Sup., 2018 Mass. LEXIS 14).

Subcontractor Not Required To Indemnify Builder For Defects, Appeals Court Rules
COLUMBIA, S.C. - A subcontractor accused of construction defects is not required to indemnify or contribute to a $150,000 arbitration award issued to a woman in her lawsuit against D.R. Horton Inc., a South Carolina appeals panel ruled Jan. 10, finding that the indemnification clause in the agreement between the builder and subcontractor violated state law (D.R. Horton Inc. v. Builders FirstSource Southeast Group LLC, et al., No. 5529, S.C. App., 2018 S.C. App. LEXIS 2).

Appeals Court: Subsequent Homeowner's Defects Suit Not Subject To Arbitration
HOUSTON - A Texas appeals panel on Jan. 25 upheld a trial court judge's ruling denying D.R. Horton-Emerald Ltd.'s (DRH) motion to compel arbitration of a construction defects suit brought by subsequent buyers of a home, finding that they are not successors in interest to an agreement between the builder and the original buyers (D.R. Horton-Emerald Ltd. v. Daniel Mitchell, et al., No. 01-17-00426-CV, Texas App., 1st Dist., 2018 Texas App. LEXIS 731).

Panel: Judge Erred When Reducing Stipulated Costs For Damages To Common Areas
HARRISBURG, Pa. - A Pennsylvania appeals panel on Jan. 16 reversed a trial court judge's decision that a condominium association should not receive $905,985 in stipulated damages to repair defects in common areas of the complex, finding that the judge was not free to disregard the parties' agreement (Hillside Villas Condominium Association v. Bottaro Development Co., et al., Nos. 615 CD 2017, 616 CD 2017, Pa. Cmwlth., 2018 Pa. Commw. LEXIS 43).

California Appeals Court Says Flagstone Seller Cannot Obtain Attorney Fees
LOS ANGELES - A building materials supplier accused of selling defective flagstone to a couple's masonry subcontractor cannot obtain attorney fees from the plaintiffs after prevailing on its breach of warranty claim, a California appeals panel ruled Jan. 9, holding that an agreement between the seller and the subcontractor only conferred a right to the parties in the contract to those fees (Jeffrey Prince, et al. v. Thompson Building Materials, No. B280813, Calif. App., 2nd Dist., 2nd Div., 2018 Calif. App. Unpub. LEXIS 150).

Couple Not Entitled To Attorney Fees In Defects Suit, Appeals Court Says
BATON ROUGE, La. - A couple who prevailed on their claims that a home builder committed fraud when telling them he built a house that had construction defects cannot receive $30,600 in attorney fees, a 2-1 Louisiana appeals panel ruled Jan. 11, finding that the man was not a party to the sales agreement for the house and that there is no recovery of attorney fees in quasi-delictual actions (Barrett W. Magee, et al. v. Cadis Construction LLC, No. 2017 CA 0515, La. App., 1st Cir., 2018 La. App. Unpub. LEXIS 8).

Statute Of Repose Bars Ohio's Suit Over Garage's Defects, Appeals Court Says
CANTON, Ohio - The state of Ohio's lawsuit against a contractor that built a parking garage that later sustained damage to brick around five windows of the structure is barred by the state's 10-year statute of repose, an appellate panel ruled Jan. 8, holding that a lower court judge erred when applying the doctrine of nullum tempus (Ohio v. Karl H. Rohrer Associates Inc., No. 2017AP030008, Ohio App., 5th Dist., 2018 Ohio App. LEXIS 71).

Plaintiffs Say Judge Erred When Finding Label Disclosed Actual Size Of Lumber
CHICAGO - A pair of plaintiffs told the Seventh Circuit U.S. Court of Appeals in a Jan. 25 brief that a federal judge in Illinois erred when dismissing their class action suit after he found that the labels for dimensional lumber were not inadequate and in violation of the Illinois Consumer Fraud Act (ICFA) (Michael Fuchs, et al. v. Menard Inc., No. 17-3260, 7th Cir.).

Emails Shared With Contractor Are Privileged, Magistrate Judge Rules
BOSTON - Emails shared with a contractor who discovered construction defects in a couple's home are protected from disclosure by the work product doctrine, a federal magistrate judge in Massachusetts ruled Jan. 26, holding that the documents contained information about ongoing litigation and litigation strategy (Gregg Wade, et al. v. Touchdown Realty Group LLC, et al., No. 17-10400-PBS, D. Mass., 2018 U.S. Dist. LEXIS 13069).

Couples Settle Suit With Home Builder Over Allegedly Faulty Stucco
ORLANDO, Fla. - Two couples who were subsequent purchasers of homes built by Pulte Home Corp. that had allegedly improperly installed stucco dismissed their lawsuit in Florida federal court on Jan. 3 after reaching settlements with the company (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.).

Couple, Siding Maker Agree To Dismiss Suit Over Defects
PENSACOLA, Fla. - A couple and the manufacturer of siding that allegedly peels, cracks and chips before the expiration of its warranty agreed to dismiss a Florida state court lawsuit on Jan. 5, with each party to pay its own costs (Larry Matthews, et al. v. J.D. Hardie Building Products Inc., No. 16-000534, Fla. Cir., Santa Rosa Co.).

Insurer Removes $4M Suit Alleging Building Defects Caused Water Intrusion
CHARLESTON, S.C. - Liberty Mutual Insurance Co. says in a Jan. 4 notice of removal that an apartment complex owner's lawsuit that alleges construction defects leading to water intrusion and termite damage have resulted in $4 million in damages belongs in federal court because complete diversity exists between the parties and damages exceed the $75,000 jurisdictional threshold (E.C. Lofts LLC v. Tauer LLC, et al., No. 18-cv-31-RMG, D. S.C.).

Woman Sues Contractor, Says Faulty Installation Of Deck Caused Fire
HACKENSACK, N.J. - A New Jersey woman on Dec. 18 sued a remodeling company, its owner and the manufacturer of outdoor decking in state court, contending that the contractor's negligence when installing an outdoor deck caused a fire at her home (Barbara Irianne v. JJED Remodeling LLC, et al., No. BER-DC-20239-17, N.J. Super., Bergen Co.).

Judge Strikes Expert's Opinions, Denies Certification Of Class Over Siding
MINNEAPOLIS - A proposed class for consumers claiming that fiber cement siding on their homes prematurely fades and delaminates cannot be certified, a federal judge in Minnesota ruled Jan. 2, finding that individual issues involving each class member's home would require a mini-trial (In re: HardiePlank Fiber Cement Siding Litigation, MDL 2359, Case No. 12-md-2359, D. Minn.).

Siding Maker Awarded Summary Judgment On Plaintiffs' Warranty Claims
MINNEAPOLIS - A federal judge in Minnesota on Jan. 2 awarded summary judgment to the manufacturer of fiber-cement siding that allegedly discolors prematurely, finding that the 50-year limited warranty provided by the company does not cover improper installation or design defects (In re: HardiePlank Fiber Cement Siding Litigation, MDL 2359, Case No. 12-md-2359, D. Minn., 2018 U.S. Dist. LEXIS 102).

Disputes Exist Over Whether Subsequent Buyers Knew About Building Code Violations
ORLANDO, Fla. - A federal judge in Florida on Dec. 14 denied Pulte Home Corp.'s motion for summary judgment, holding that genuine disputes exist as to whether subsequent home buyers knew about building code violations concerning the allegedly faulty installation of stucco on the homes (Shaun Parker Gazzara, et al. v. Pulte Home Corp., No. 16-cv-657, M.D. Fla., 2017 U.S. Dist. LEXIS 205416).

Home Builder Sues Subcontractors Over Faulty Installation Of Stucco
DELAND, Fla. - KB Home Jacksonville LLC and two other KB Home entities on Nov. 30 filed suit in Florida state court against four subcontractors that were responsible for installing stucco on a home, contending that the defendants breached the terms of their construction contracts by failing to perform the work "in a first class and workmanlike manner" (KB Home Jacksonville LLC, et al. v. Branco Lath & Stucco Inc. et al., No. 2017-30254-CICI, Fla. Cir., Volusia Co.).

Appeals Court Affirms Woman's $154 Award For Improperly Installed Subflooring
PITTSBURGH - A woman is not entitled to more than the $154 she was awarded following a bench trial over a contractor's alleged improper installation of subflooring following mold remediation, a Pennsylvania appeals court panel ruled Dec. 15, finding that other costs associated with repairing the mistake were outside the terms of their agreement (Myrna Cohen v. JS Associated Service, No. 390 WDA 2017, Pa. Super., 2017 Pa. Super. Unpub. LEXIS 4609).

Couple: Home's Systemic Humidity Problem Caused Mold Growth, Dust Mites
FORT LAUDERDALE, Fla. - A Florida couple filed a lawsuit in state court on Dec. 14 against Toll Brothers Inc., the architect of a home as well as the contractor who installed the heating, ventilation and air conditioning (HVAC) system, claiming that systemic humidity within the home resulted in mold growth and increased dust mite allergens that have made the structure uninhabitable (Maziar Monshi, et al. v. Toll FL V LLC, et al., No. 2017-CA-022661, Fla. Cir., Broward Co.).

Judge: Statute Of Repose Bars Majority Of Suit Over Clubhouse Defects
BEAUFORT, S.C. - An architecture firm and general contractor cannot face claims for breach of contract and breach of express and implied warranties over alleged defects in the installation of the trusses of a community clubhouse, a federal judge in South Carolina ruled Dec. 27, finding that the clubhouse owner's claims were barred by the state's eight-year statute of repose (Hampton Hall LLC v. Chapman Coyle Chapman & Associates Architects AIA Inc., et al., No. 17-1575, D. S.C., 2017 U.S. Dist. LEXIS 211833).

Judge: More Discovery Needed To Determine If Association's Defects Suit Is Timely
NEWARK, Del. - A Delaware judge on Dec. 7 deferred ruling on motions for summary judgment filed by two contractors, holding that more discovery is needed to determine if a construction defects lawsuit brought by a condominium owners association is barred by the statute of limitations (Crest Condominium Association, et al. v. Royal Plus Inc, et al., No. S16C-10-024-RFS, Del. Super., Sussex Co., 2017 Del. Super. LEXIS 642).

Arbitration Panel Did Not Err When Awarding Damages To Homeowner
SAN ANTONIO - A Texas appeals court panel on Dec. 13 affirmed a judge's ruling awarding $103,340.26 in damages, attorney fees, expenses and interest to a man who claimed that defects in the construction of his home resulted in water intrusion, ruling that an arbitration panel did not err when finding that neither the man nor the home builder was the prevailing party (Pasadera Builders LP v. Todd Hughes, No. 04-17-00021-CV, Texas App., 4th Dist., 2017 Tex. App. LEXIS 11538).

Developer Removes Defects Suit, Cites Diversity Excessive Damages
BOSTON - The developer of a 150-unit condominium complex on Dec. 28 removed to Massachusetts federal court a lawsuit brought by a trust of individual unit owners over alleged construction defects, arguing that complete diversity exists between the parties and that the trust is seeking damages in excess of $5 million (Liz D'Allesandro, et al. v. Lennar Hingham Holdings LLC, et al., No. 17-12567, D. Mass.).

Nevada Supreme Court Denies KB Home's Challenge To Association's Notice
LAS VEGAS - A panel of the Nevada Supreme Court on Nov. 30 denied a petition for a writ of mandamus or prohibition filed by KB Home Nevada Inc. seeking reversal of a trial court's ruling that supplemental class notices filed by a homeowners association satisfied Nevada Revised Statute 40 requirements, finding that the judge has yet to determine if the association can bring claims on behalf of individual homeowners (KB Home Nevada Inc. v. Eighth Judicial District Court of the State of Nevada, In and for the County of Clark, No. 73861, Nev. Sup., 2017 Nev. Unpub. LEXIS 1081).

Louisiana Appeals Court Affirms Judgment In Contractor's Favor In Defects Dispute
LAKE CHARLES, La. - A Louisiana appeals court panel on Dec. 6 affirmed a trial court judge's $1,125 award to a contractor accused of construction defects, finding that the evidence demonstrated that while the standards of the contractor's work were comparable to a "Volkswagen" rather than a "Cadillac," it did breach the terms of a construction contract (Calvin Paul Williams v. Vincent Alexander, Nos. CA-17-436, 17-437, La. App., 3rd Cir., 2017 La. App. Unpub. LEXIS 377).

La. Appeals Court Affirms Dismissal Of Defects Claim Against Contractor
GRETNA, La. - A Louisiana appeals panel on Dec. 20 upheld a trial court's ruling that a couple failed to submit sufficient evidence of a contractor's allegedly defective work, holding that photographs and videos presented by the plaintiffs failed to support their allegations (Lynda Vinet, et al. v. D & M Renovation LLC, et al., No. 17-CA-161, La. App., 5th Cir., 2017 La. 2383).

Texas Appeals Court Says Judge Erred When Dismissing Couple's Defects Suit
AMARILLO, Texas - A trial court judge in Texas erred when dismissing a couple's construction defects and breach of contract suit against a builder for want of prosecution without providing proper notice, a state appeals court panel ruled Dec. 11 (Patrick Pence, et al. v. S&D Builders LLC, et al., No. 07-16-00005-CV, Texas App., 7th Dist., 2017 Tex. App. LEXIS 11501).

Louisiana Appeals Court Finds Judgment Dismissing Claim In Defects Suit Appealable
ST. CHARLES, La. - A Louisiana appeals panel on Nov. 29 reversed an earlier ruling in which it found that an order dismissing with prejudice a man's claims over alleged construction defects was not immediately appealable, after finding that the decision disposed of the plaintiff's principal demand rather than particular issues (Lynton O. Hester v. Burns Builders, et al., No. CA 17-824, La. App., 3rd Cir., 2017 La. App. Unpub. LEXIS 371).

Appeals Court Overturns Ruling Severing Roofer From Defects Lawsuit
DAYTONA BEACH, Fla. - A trial court judge in Florida erred when granting a couple's motion to dismiss a condominium complex operator's third-party suit against a roofing subcontractor, a Florida appeals court panel ruled Dec. 1, finding that there is a clear risk of inconsistent verdicts if the claims are tried separately (Martinique Condominiums, Inc. v. Michael P. Short, et al., No. 5D17-1546, Fla. App., 5th Dist., 2017 Fla. App. LEXIS 17984).

Michigan Appeals Court Finds Couple Entitled To Attorney Fees From Association
DETROIT - A Michigan appeals panel on Dec. 12 affirmed a trial court judge's decision to award $7,918 in attorney fees and costs to a couple in a condominium lien suit brought against them by an owner's association, finding that the association had no basis to bring its action (Nottingham Village Condominium Association v. John Pensom, et al., No. 333311, Mich. App., 2017 Mich. App. LEXIS 2023).

Judge Certifies 6 Classes For Buyers Of Allegedly Defective Laminate Flooring
SAN FRANCISCO - A federal judge in California on Nov. 15 certified classes for purchasers from California, Florida, Illinois, Minnesota, Pennsylvania and West Virginia who claim that Lumber Liquidators Inc. violated state consumer protection laws when selling bamboo laminate flooring that prematurely warped, buckled, splintered, shrank and split before the expiration of the product's warranty (Dana Gold, et al. v. Lumber Liquidators, Inc., No. 14-cv-5373, N.D. Calif.).

Appeals Court Upholds Ruling Denying Project Manager's Indemnification Request
PHILADELPHIA - A 2-1 panel of the Pennsylvania Superior Court on Nov. 3 affirmed a ruling that a project manager was not entitled to $62,510.73 in damages from a concrete subcontractor after finding that a condominium owner's association could not pursue a breach of the implied warranty of habitability claim against the project manager (Beaumont Condominium Association v. Jeffrey M. Brown Associates, Inc., et al., Nos. 2177 EDA 2016, 2181 EDA 2016, Pa. Super., 2017 Pa. Super. Unpub. LEXIS 4082).

California Appeals Court Reinstates Man's Defects Claim Over Plumbing
RIVERSIDE, Calif. - A California appeals panel on Nov. 16 reversed a trial judge's decision to award summary judgment to a general contractor accused of construction defects, holding that the man should be allowed to present evidence to demonstrate that his allegations of defectively installed plumbing are timely (Michael Letourneau v. Turner Construction Company, No. D071680, Calif. App., 4th Dist., 1st Div., 2017 Calif. App. Unpub. LEXIS 7847).

California Appeals Court Affirms Dismissal Of Landscape Company From Defects Suit
RIVERSIDE, Calif. - A trial court judge did not err when dismissing a landscaping company from a construction defects suit because it was not properly served within three years of the filing of the initial complaint, a California appeals panel ruled Nov. 27 (On Seacoast Homeowners Association v. Pacific Green Landscape, No. D069840, Calif. App., 4th Dist., 1st Div., 2017 Calif. App. Unpub. LEXIS 8048).

Louisiana Appeals Court Vacates Couple's $20,000 Award Over Defects
GRETNA, La. - A Louisiana appeals panel on Oct. 25 vacated a trial court judge's decision to award $20,000 to a couple who claimed that a builder improperly placed a lien on an apartment building it constructed, finding that the plaintiffs were unable to show that they sustained damages as a result of delayed construction and construction defects (Gerald Phillips, et al. v. Doucette & Associated Contractors, Inc., No. 17-CA-93, La. App., 5th Cir., 2017 La. App. LEXIS 2035).

Judge Denies Dismissal Of Defects Suit Following Completion Of Mediation
LAS VEGAS - A federal judge in Nevada on Nov. 28 denied D.R. Horton Inc.'s motion to dismiss a construction defects suit, finding that the completion of mediation satisfied the homeowners association's presuit notification requirement (Azure Manor/Rancho de Paz Homeowners Association v. D.R. Horton, Inc., No. 14-cv-002222, D. Nev.).

Appeals Court Orders Judge To Recalculate Sanctions Imposed Against Developer
WEST PALM BEACH, Fla. - A Florida appeals panel on Nov. 22 ordered a trial court judge to recalculate the amount of damages a developer must pay as a sanction for civil contempt, holding that the initial amount included attorney fees that did not stem from the developer's failure to send a sufficient representative to court-ordered mediation (Gozzo Development, Inc., et al. v. Anne M. Esker, No. 4D16-3734, Fla. App., 4th Dist., 2017 Fla. App. LEXIS 17574).

Property Owner, Contractor Ordered To Stop Renovations, Pay For Neighbor's Damages
NEW YORK - A New York justice on Nov. 22 ordered a property owner and contractor who were renovating a property without the knowledge of an adjoining property owner to pay the woman for damages to her chimney and foundation wall and stop working on the project (Natasha Baptiste v. 70A Cooper PH LLC, et al., No. 516901/2017, N.Y. Sup., Kings Co., 2017 N.Y. Misc. LEXIS 4417).

Home Builders Say Proposed Class Over Stucco Defects Is 'Hopelessly Conflicted'
BEAUFORT, S.C. - Del Webb Communities Inc. and Pulte Homes Inc. say in an opposition brief filed Nov. 15 in South Carolina federal court that a proposed class of owners of approximately 2,000 homes built over the span of 10 years using allegedly defective stucco systems should not be certified because it is "hopelessly conflicted" (Jacqueline L. Craft, et al. v. South Carolina Plastering LLC, et al., No. 15-cv-05080-PMD, D. S.C.).

Florida Couple Says Improperly Installed Stucco Led To Water Infiltration, Damages
TAVARES, Fla. - A Florida couple sued KB Home and two of its subsidiaries in state court on Nov. 16, claiming that stucco that was improperly installed on their home resulted in water infiltration and damages (Arthur Hunter, et al. v. KB Home, et al., No. 2017-CA-00219, Fla. Cir., Lake Co.).

Shingle Maker: Issues On Timeliness, Standards Doom Class Certification
PEORIA, Ill. - IKO Manufacturing Inc. says in a Nov. 16 brief filed in Illinois federal court that a proposed class for purchasers of its organic asphalt shingles who claim that the product is defective should not be certified because a number of individual issues predominate over common claims (In re: IKO Roofing Shingle Products Liability Litigation, MDL 2104, Case No. 09-md-2104, C.D. Ill.).

Firm Representing Homeowner's Association Announces $1M Settlement Over Defects
LOS ANGELES - A California law representing a homeowner's association for residents who purchased condominiums in a converted jewel manufacturing facility announced in a press release Nov. 9 that it had reached a $1 million settlement with the builder to resolve complaints stemming from construction defects that resulted in water intrusion and cracked concrete.

Pennsylvania Lawmaker Introduces 2 Bills To Protect Homeowners From Defects
HARRISBURG, Pa. - A legislator from Pennsylvania on Oct. 18 introduced two bills that would expand protection for homeowners and new home buyers affected by construction defects by extending the statute of limitations for claims and by requiring builders and subcontractors to inform homeowners of defects within 30 days of discovery.