Mealey's Construction Defects

  • July 10, 2020

    Divided 5th Circuit Upholds Chinese Drywall MDL Judge’s Ruling On Jurisdiction

    NEW ORLEANS — A 2-1 Fifth Circuit U.S. Court of Appeals panel on July 9 affirmed the Chinese drywall multidistrict litigation judge’s 2017 ruling finding that the court had jurisdiction over claims brought by homeowners in Florida, Louisiana and Virginia against affiliates of China-based manufacturers on the ground that the companies had sufficient contacts with the states (In re Chinese-Manufactured Drywall Products Liability Litigation: Edward Amorin, et al. v. China National Building Materials Co., et al., No. 18-30742, 5th Cir.).

  • July 10, 2020

    Pennsylvania Appeals Court Upholds Couple’s Arbitration Award In Defects Suit

    PHILADELPHIA — A trial court judge in Pennsylvania did not err when confirming a $56,518.03 arbitration award to a couple who was seeking attorney fees from the builder of their home as part of a repair agreement, state appeals panel ruled July 8, holding that the arbitrator properly considered invoices submitted by the builder during the three-day proceeding (Michael D’Amelia, et al. v. Toll Brothers Inc., No. 3709 EDA 2018, Pa. Super., 2020 Pa. Super. LEXIS 559).

  • July 08, 2020

    Newly Filed Suits Say Construction Defects Led To Water Intrusion, Fire

    Five lawsuits were recently filed in state courts in Texas and Georgia by homeowners who complain that defects in the construction of their homes led to damages ranging from water intrusion to a fire (William C. Coetser, et al. v. Darling Homes of Texas Inc., No. 20-DCV-273700, Texas 268th Jud. Dist., Fort Bend Co., Scott F. Jenney, et al. v. Milestone Community Builders LLC, No. 20-DCV-273724, Texas 434th Jud. Dist., Fort Bend Co., Tonya Hutson, et al. v. Wimbish Kelly Construction LLC, d/b/a Putnam Builders, No. 20-CV-0731, Texas 122nd Jud. Dist., Galveston Co., Leslie F. Spasser, et al. v. Hunter Reising Design & Build Inc., et al., No. 20-3130, Ga. Super., Fulton Co., Kiran Yarlagadda v. Rockhaven Homes LLC, et al., No. n/a, Ga. Super, Fulton Co.).

  • July 08, 2020

    Judge Trims Claims From Class Action Suit Over Allegedly Faulty Shingles

    KANSAS CITY, Kan. — A federal judge in Kansas on June 26 dismissed with prejudice a claim for breach of implied warranty brought by three sets of plaintiffs in a suit claiming that TAMKO Building Products Inc. sold roofing shingles that prematurely cracked, but allowed the plaintiffs to amend some of their allegations for violations of state consumer protection laws (Martin Melnick, et al. v. TAMKO Building Products Inc., No. 19-2630-JWL, D. Kan., 2020 U.S. Dist. LEXIS 112254).

  • July 08, 2020

    Illinois Panel Vacates Judgment Based On Arbitrator’s Award In Defects Case

    CHICAGO — An Illinois appeals panel on June 29 vacated a ruling entering judgment in favor of a couple on their claims for breach of contract, fraud in the inducement, breach of express warranty and breach of implied warranty of workmanlike performance against the builder of their home, finding that the judge erred when basing the decision on an arbitrator’s decision in favor of the plaintiffs (Gregory Chinlund, et al. v. Heffernan Builders LLC, et al., No. 1-19-1528, Ill. App., 1st Dist., 1st Div., 2020 Ill. App. LEXIS 428).

  • July 07, 2020

    Panel: Email From Homeowners’ Counsel Did Not Agree To Dismiss Defects Suit

    PHOENIX — An Arizona appeals panel on June 30 reinstated construction defects claims brought by 10 homeowners after finding that a trial court judge erred when granting a joint motion to enforce a stipulation of dismissal based on the contents of an email from counsel for the plaintiffs regarding a deadline for inspections of the homes (Joel Baumgartner, et al. v. Meritage Homes of Arizona Inc., No. 1 CA-CV 19-0641, Ariz. App., 1st Div., 2020 Ariz. App. Unpub. LEXIS 730).

  • July 01, 2020

    Roofing Subcontractor’s Arbitration Award For Nonpayment Affirmed By Judge

    MIAMI — A federal judge in Florida on June 18 granted a roofing subcontractor’s motion to confirm a $681,168.40 arbitration award based on a contractor’s failure to pay for work on a federal building in Miami pursuant to a subcontract, holding that an arbitrator was impartial and properly considered evidence, and ruled that summary judgment should be awarded against the bond surety company hired to ensure that the contractor timely paid the subcontractor (United States, ex rel. Salomon Construction & Roofing Inc. v. BES Design/Build LLC, et al., No. 18-cv-21059-UU, S.D. Fla., 2020 U.S. Dist. LEXIS 107775).

  • June 30, 2020

    Pennsylvania Panel Orders Clarification Of Ruling Vacating Arbitrator’s Decision

    PHILADELPHIA — A trial court judge in Pennsylvania was ordered by an appeals court panel on June 26 to specify the material evidence that would be produced during discovery that warrants the decision to vacate an arbitrator’s finding that a couple’s construction defect claims are barred by the 12-year statute of repose because the information is necessary for the panel to have jurisdiction over the builder’s appeal (David Kopew, et al. v. Toll Brothers Inc., et al., No. 760 EDA 2019, Pa. Super., 2020 Pa. Super. Unpub. LEXIS 2075).

  • June 25, 2020

    Homebuilder’s Timeliness Challenge In Defects Suit Premature, Judge Rules

    PITTSBURGH — A federal judge in Pennsylvania on June 22 overruled a homebuilder’s arguments that a breach of contract claim in a construction defects suit is barred by a one-year limitations period in the purchase agreement, holding that discovery is needed to determine the applicability of the repair doctrine and whether the limitations period is “manifestly unreasonable” (Laura Catena, et al. v. NVR Inc. doing business as Heartland Homes of PA, No. 20-CV-00160-MJH, W.D. Pa., 2020 U.S. Dist. LEXIS 108921).

  • June 25, 2020

    Panel Upholds Class Cert To Unit Owners Over Damages In Sprinkler Replacement Suit

    MIAMI — A Florida appeals panel on June 24 upheld a trial court judge’s non-final order granting a motion for class certification to condominium unit owners seeking compensation for damages to their units that occurred when the building’s fire sprinkler system was removed and replaced, holding that the damages were common to each unit owner (Allied Tube & Conduit Corp., et al. v. Latitude on the River Condominium Association Inc., Nos. 3D19-2054, 3D19-2053, 3D19-2051, 3D19-2048, 3D19-2046, 3D19-2044, Fla. App., 3rd Dist., 2020 Fla. App. LEXIS 8914).

  • June 25, 2020

    Judge’s Rejection Of General Contractor’s Settlement And Release Defense Affirmed

    SAN FRANCISCO — A California appeals panel on June 4 upheld a trial court judge’s rejection of a general contractor’s settlement and release defense in a suit over a remodeling project that involved the faulty installation of window and doors that later leaked, finding that a couple sufficiently proved during a trial that damages they sustained were the result of work performed by the general contractor and not barred by settlement agreements the plaintiffs entered into with three subcontractors (Philip Stolp, et al. v. Murphy-True Inc., et al., Nos. A153637, A154770, A155426, Calif. App., 1st Dist., 1st Div., 2020 Cal. App. Unpub. LEXIS 3495).

  • June 25, 2020

    Builder Says Gross Negligence Claim Is An Improper Attempt At Punitive Damages

    CLEARWATER, Fla. — A home builder accused of construction defects and attempting to cover up the defects rather than repair them says in a May 11 motion to dismiss filed in Florida state court that a man’s amended complaint that the addition of a claim for gross negligence should be dismissed and stricken because it is an attempt to obtain punitive damages without complying with state law requirements (John Michaelos v. Monogram Builders Inc., No. 17-002803-CI, Fla. Cir., 6th Cir., Pinellas Co., 2020 FL Cir. Ct. Motions LEXIS 791).

  • June 24, 2020

    Judge: Couple’s Negligence Claim Over Water Intrusion Not Barred By Warranty

    NEW CASTLE, Del. — A Delaware judge on May 27 refused to dismiss a couple’s lawsuit against the builder of their home, finding that the court has subject matter jurisdiction because their negligence claim is not subject to an arbitration clause in the home warranty and because the couple can pursue a claim for negligence instead of a claim for breach of warranty (Ryan Altenbaugh, et al. v. Benchmark Builders Inc., et al., No. N19C-11-046, Del. Super., New Castle Co.).

  • June 19, 2020

    Panel Affirms Rescission Of Modular Home’s Sale For Defects, Vacates Attorney Fees

    LAKE CHARLES, La. — A Louisiana appeals court panel on June 17 affirmed a trial court judge’s ruling that a couple could rescind the May 2016 purchase of a modular home on the ground that it suffered from construction defects but vacated an attorney fee award of $10,000 after finding that the seller could not have known of the defects at that time of the sale (Steve Dodge, et al. v. White’s Mobile Homes Inc., No. 19-759, La. App., 3rd Cir., 2020 La. App. LEXIS 912).

  • June 17, 2020

    Plaintiffs’ Expert:  Defects Require Removal, Replacement Of Veneers, Window

    WILMINGTON, Del.— An engineer proffered as an expert witness for plaintiffs who say that defects in the construction of their homes allowed for water instruction and ensuing damages offered his opinions on the causes of the defects, as well as suggested repairs, in a disclosure filed in Delaware state court on June 16 (Greg Porter, et al. v. Capano Homes Inc., No. N19C-05-208, Del. Super., New Castle Co.).

  • June 16, 2020

    Dismissal Of Association’s 2nd Defects Suit As Untimely Upheld On Appeal

    TRENTON, N.J. — A New Jersey appeals panel on June 15 affirmed a trial court judge’s sua sponte dismissal of a condominium association’s second construction defects lawsuit, holding that the action was barred by the state’s six-year statute of limitations because the association was aware of the alleged defects that were causing water intrusion in September 2008 (Riva Pointe at Lincoln Harbor Condominium Association Inc. v. Tishman Construction Corp., et al., No. A-3568-18T2, N.J. Super., App. Div., 2020 N.J. Super. Unpub. LEXIS 1142).

  • June 16, 2020

    Dispute Over Arbitrability, Injunction Carveout Heading Back To High Court

    WASHINGTON, D.C. — In its June 15 order list the U.S. Supreme Court announced that it will hear, for a second time, a dispute between two distributors of dental equipment that poses the question of whether an exemption in an arbitration agreement for certain claims negates what a petitioner describes as “an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator” (Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, U.S. Sup.).

  • June 12, 2020

    Arbitration Clause In Home Sales Agreement Is Enforceable, Panel Rules

    COLUMBIA, S.C. — A South Carolina appeals panel on June 10 reversed a trial court’s decision denying a developer’s motion to compel arbitration of a construction defects lawsuit, holding that the Federal Arbitration Act (FAA) governs the arbitration clause in the purchase and sales agreements (PAs) for the homes and that the arbitration clause is valid (Patricia Damico, et al. v. Lennar Carolinas LLC, et al., No. 5730, S.C. App., 2020 S.C. App. LEXIS 50).

  • June 10, 2020

    Chancery Judge Adopts Master’s Recommendation To Deny Dismissal Of Mold Suit

    GEORGETOWN, Del. — A Chancery Court judge in Delaware on June 5 overruled a builder’s exceptions to a Master in Chancery’s Feb. 6 recommendation to deny its motion to dismiss a woman’s lawsuit seeking equitable rescission of her home after she discovered mold, holding that the court had subject matter jurisdiction and that the woman sufficient stated claims for trespass and intentional misrepresentation (Cynthia R. Kane v. NVR Inc., No. 2019-0569-PWG, Del. Chanc., 2020 Del. Ch. LEXIS 206).

  • June 04, 2020

    Colorado Senate Rejects Construction Defect Bill Aimed At Extending Filing Window

    DENVER — The Colorado Senate on May 29 rejected a bill that would have extended the statute of repose and statute of limitations for lawsuits involving construction defects.