- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Comm’r of Hwys v. Karverly, Inc., 813 S.E.2d 322 (Va. 2018)
In 2014, the Commissioner of Highways (“Commissioner”) filed a certificate of take and later a petition for condemnation to acquire a 0.115 acre strip of property owned in fee simple by Kaverly, Inc. (“Kaverly”) to create a multi-use trail and for the reconstruction of Route 5 in Henrico County. Kaverly operates a child daycare center on the remainder of the property, which is approximately 5.17 acres. The strip of property taken includes a buffer between a fence and Route 5. Kaverly argued that it would need to move the fence inward in order to create a new buffer for privacy and security. Both of these changes, Kaverly concluded, would in turn require the relocation of the “playscapes” within the playground area. The new buffer and relocation of the fence and playscapes were the basis for Kaverly’s claim for damages to the fair market value of the remainder. On appeal, the Commission argued that the trial court abused its discretion by excluding its expert’s testimony on the ground that it offended settled valuation law governing damages to the remainder. The Supreme Court of Virginia agreed.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Basham v. Jenks, 2018 U.S. Dist. LEXIS 79763 (W.D. Va. May 10, 2018)
Timothy Basham (“Basham”), a South Carolina resident, and Timothy L. Jenks (“Jenks”), a Virginia resident, formed Waterstone Development Company, LLC (“Waterstone”) in 2007 to develop homes in Roanoke County, Virginia. Basham and Jenks each owned 50 percent of Waterstone and both were required to make contributions to ensure liquidity and viability of the company. During its existence, Waterstone entered into multiple promissory note arrangements, at least one of which was with Franklin Community Bank (“Bank”). In December of 2013, Waterstone became insolvent, with outstanding obligations to Bank and other creditors in excess of $280,000.00. Basham alleged that he paid $274,000.00 to creditors, while Jenks only paid $6,000.00. Basham filed a breach of contract claim against Jenks, who removed the case to federal court.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Faneuil Inc. v. 3M Co., 2018 Va. Cir. LEXIS 74 (Cir. Ct. City of Richmond May 14, 2018)
In 2011, the Virginia Department of Transporation (“VDOT”) hired Elizabeth River Crossing Opco, LLC (“Elizabeth River”) to develop, design, construct, manage, operate, and maintain a tolling project in the Hampton Roads region of Virginia (the “Project”). Elizabeth River contracted 3M Company (“3M”) to design, implement, and operate the electronic tolling system (the “Tolling System”) for the Project. On October 9, 2013, 3M engaged Faneuil Inc. (“Faneuil”) to, among other tasks, run the customer service center and identify, invoice, and accept payment from the non-E-Z Pass drivers under a subcontract that contained a flat monthly rate (the “Tolling Subcontract”). Section 14.05(a) of the Tolling Subcontract required the parties to execute a “Scope Change” in the event of any “material addition to, deletion from, suspension of or other modification to” or a “material change to the requirements of the” Tolling Subcontract. Section 25.18 of the Tolling Subcontract further required the parties to memorialize in writing any alteration, amendment, or revocation to the matters covered in the Tolling Subcontract.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
LAM Enters., LLC v. Roofing Sols., Inc., 2018 Va. Cir. LEXIS 80 (Cir. Ct. City of Roanoke May 30, 2018)
In September of 2012, LAM Enterprises, LLC (“LAM”) contracted with Roofing Solutions, Inc. (“Roofing Solutions”) for Roofing Solutions to replace a portion of a roof on a commercial property owned by LAM (the “Contract”). The Contract price was $44,900.00. In February of 2014, LAM filed a lawsuit against Roofing Solutions, alleging it breached the Contract’s indemnity and warranty provisions. In May of 2017, Roofing Solutions moved for partial summary judgment on whether the Contract’s limitation of liability provision capped Roofing Solutions’ liability at the Contract price of $44,900.00. Paragraph 6 of the Contract stated, “[i]t is agreed that in no event shall the liability of the Contractor exceed the contract price.” The Court granted Roofing Solutions’ motion for partial summary judgment on the limitation of damages issue.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
CGI Fed. Inc. v. FCi Fed., Inc., 2018 Va. LEXIS 74, 2018 WL 2728726 (Va. June 7, 2018)
In 2012, the State Department solicited bids for a visa processing contract. CGI Federal, Inc. (“CGI”), as a large contractor, was ineligible to bid because the State Department reserved the contract for small businesses. Although FCi Federal, Inc. (“FCI”), as a smaller contractor, was eligible to bid for the contract, it did not have the capabilities to perform the work alone. Therefore, CGI and FCI agreed to cooperate in submitting a proposal for the contract and entered into a teaming agreement on September 19, 2012 (the “Teaming Agreement”) to prepare a proposal. Under Section 2.0 of the Teaming Agreement, FCI “retain[ed] express and exclusive control over all prime proposal activities . . . as well as negotiation of any resulting prime contract.” From the outset, CGI wanted at least 40% of the work available under the contract or its participation in the Teaming Agreement would not be worthwhile. The Teaming Agreement’s Statement of Work provided “Subject to the final solicitation requirements, [CGI] will receive forty-five percent (45%) work share of the total contract value . . . but the work share commitment may not be exactly 45% each year.”
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Knox Energy, LLC v. Gasco Drilling, Inc., 2018 U.S. App. LEXIS 15646, 2018 WL 2944408 (4th Cir. June 11, 2018)
Knox Energy, LLC and Consol Energy, Inc. (collectively, “Consol”) filed a declaratory judgment action against Gasco Drilling, Inc. (“Gasco”), seeking a declaration that a drilling contract between Consol and Gasco was unenforceable because there was no meeting of the minds. Gasco filed a counterclaim, alleging that the contract was valid and enforceable. A jury returned a verdict in favor of Consol, finding there was no meeting of the minds. On appeal, Gasco argued: (1) the district court erred in instructing the jury on mutual assent; (2) Consol engaged in discovery misconduct, which warranted a new trial; and (3) the district court abused its discretion in excluding a document that Gasco sought to introduce during trial, which Gasco claimed also warranted a new trial. The Fourth Circuit Court of Appeals affirmed the district court’s decisions.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Travelers Indem. Co. v. Lessard Design, Inc., 2018 U.S. Dist. LEXIS 98937, 2018 WL 2939014 (E.D. Va. June 12, 2018)
In a previous lawsuit, Humphreys & Parnters Architects, LP (“Humphreys) sued Lessard Design, Inc. (“Lessard Design”), PDT Builders, LLC (“PDT”), and other Penrose Group entities (the “Penrose Group”) for copyright infringement. PDT tendered its defense to Lessard Design. After Lessard Design declined to defend PDT, the Penrose Group and PDT tendered their own defense to Travelers Indemnity Company of Connecticut (“Travelers”) pursuant to the Penrose Group’s Commercial General Liability policy (“CGL Policy”). Travelers accepted the tender of defense and paid the attorneys’ fees and costs associated with the defense in the Humphreys litigation. As such, Travelers was subrogated to the rights of its insureds, PDT and the Penrose Group. After granting summary judgment, the district court awarded $792,765.00 in attorneys’ fees to the defendants in the Humphreys litigation, which the parties later settled for $745,000.00. Travelers, as subrogee, then requested that Lessard Design indemnify Travelers for the outstanding attorneys’ fees and costs, which Lessard Design declined. Travelers then filed suit against Lessard.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
M&C Hauling & Constr., Inc. v. Hale, 2018 Va. Cir. LEXIS 114 (Cir. Ct. Fairfax Cnty. June 28, 2018)
In June of 2014, William Hale d/b/a Mulch, Topsoil and Stone (“MTS”) and Hauling Unlimited (“HU”) entered into a subcontract for HU to provide truck hauling services for a construction project at the Joint Base Andrews in Prince George County, Maryland (the “Project”). HU then subcontracted those same services to M&C Hauling and Construction, Inc. (“M&C”). From June to July of 2014, M&C provided 2,020.25 hours of debris hauling services for the Project. Written sales tickets on HU letterhead were generated daily, reflected the day’s date, listed the hours worked on that date, and were signed by MTS’ project manager (the “Daily Tickets”). The price term of $75.00 per hour was not shown on the Daily Tickets, but was later included in an invoice dated August 9, 2014. On February 1, 2018, M&C filed a complaint against HU alleging that MTS and/or HU failed to pay M&C $86,456.23 for 1,152.75 hours of labor from June and July of 2014. HU argued that M&C’s claim was barred by Virginia’s three-year statute of limitations for unwritten contracts (Va. Code § 246(4)).
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Owens v. City of Va. Beach, 2018 Va. App. 212, 2018 WL 3732420 (Va. Ct. App. Aug. 7, 2018)
In December of 2015, Cynthia and Richard Owens (the “Owens”) hired a contractor (“First Contractor”) to renovate their condominium’s roof and an engineering firm to create a plan for the proposed work. The First Contractor applied for and the City of Virginia Beach (the “City”) issued a building permit for the work, which included the plan prepared by the engineering firm. In January of 2016, the First Contractor began work, took pictures of the work, presented the pictures to the engineering firm, and requested an inspection by the City. The engineering firm reviewed the photos and submitted them to the City along with a report. Neither the City nor the engineering firm visited the site. Relying on the engineering firm’s report and the photos, the City gave the project a “final” passing inspection status.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Precision Pipeline, LLC v. Dominion Transmission, 2018 U.S. Dist. LEXIS 133202, 2018 WL 3744018 (E.D. Va. Aug. 7, 2018)
In 2011, Dominion Transmission, Inc. (“Dominion”), retained Precision Pipeline, LLC (“Precision”), to build a stretch of natural gas pipeline through Pennsylvania and West Virginia. During construction, Precision encountered various issues, especially undisclosed subsurface utility crossings. Precision claimed that Dominion failed to pay Precision for its additional work in light of the drastically changed the scope of the project.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Columbia Gas Transmission, LLC v. Grove Ave. Developers, Inc., 2018 US Dist. LEXIS 140942 (E.D. Va. Aug. 10, 2018)
Grove Avenue Developers, Inc. (“Grove”) sought to develop a property into a small condominium complex. The property was subject to Columbia Gas Transmission, LLC’s (“Columbia”) easement to lay, maintain, operate, and remove pipelines. Columbia’s easement required Columbia to maintain its pipeline “below cultivation, so that the Grantors may fully use and enjoy the premises. . .” Although Columbia did not prohibit Grove from constructing an asphalt roadway crossing over its two gas lines installed below cultivation, Columbia sought to require Grove to pay for costly pipeline “improvements” before the road was constructed, including excavation, inspection, application of new protective coatings, and installation of a special ground fill material to protect the pipelines from future damage based on the weight of crossing vehicular traffic.
