- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Leesburg Building Partners, LLC v. Mike Berger Incorporated d/b/a MBI Concrete, Inc., Civil No. CL 115479 (Cir. Ct. Loudoun Cnty. Aug. 22, 2018)
On April 13, 2017, Leesburg Building Partners, LLC (“LBP”) contracted with Lansdowne Construction (the “Contract”) for Lansdowne Construction to construct an 18-unit condominium project known as the Ironsides Square Condominium (the “Project”). Lansdowne Construction subcontracted the concrete portion of the Contract to Mike Berger Incorporated d/b/a MBI Concrete, Inc. (“MBI”). In February of 2018, Lansdowne Construction completed the Project. On February 28, 2018, LBP paid Lansdowne Construction the full Contract price, including amounts for change orders. By April 27, 2018, LBP had conveyed all of the 18 units to third parties. On May 18, 2018, MBI recorded a Mechanic’s Lien against all of the condominium units in the amount of $48,180.00. On June 5, 2018, LBP filed a Petition for Release of Mechanic’s Lien, asserting that MBI’s Mechanic’s Lien was unenforceable under Va. Code § 43-7. On June 12, 2018, MBI filed a Petition to dismiss LBP’s Petition, asserting (i) that LBP lacked standing to bring the proceeding because it no longer had any interest in the property at issue and (ii) LBP’s Petition was not ripe for adjudication.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Allied Prop. & Cas., Ins. Co.v. Zenith Aviation, Inc., 2018 U.S. Dist. LEXIS 147627, 2018 WL 4112588 (E.D. Va. Aug. 29, 2018)
In 2017, Zenith Aviation, Inc. (“Zenith”) hired Abby Construction Company (“Abby”) to install an elevator at its warehouse. Abby used a wet saw to cut away eight inches of concrete. Abby, however, did not use any water with the wet saw, which generated concrete dust that settled on everything inside the building. As a result, Zenith’s inventory stored in the warehouse as well as its automated electronic retrieval system was damaged. Zenith had a commercial insurance policy (the “Policy”), which was issued by Allied Property and Casualty Company, Inc. (“Allied”).
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Innotec, LLC v. Visiontech Sales, Inc., 2018 U.S. Dist. 43833 (W.D. Va. March 16, 2018)
Innotec, LLC v. Visiontech Sales, Inc., 2018 U.S. Dist. LEXIS 84287, 2018 WL 2293969 (W.D. Va. May 18, 2018)
Innotec, LLC v. Visiontech Sales, Inc., 2018 U.S. Dist. LEXIS 121702 (W.D. Va. July 20, 2018)
Innotec, LLC v. Visiontech Sales, Inc., 2018 U.S. Dist. LEXIS 156793, 2018 WL 4387639 (W.D. Va. Sep. 14, 2018)
On February 14, 2013, Innotec, LLC (“Innotec”) and Visiontech Sales Group Hong Kong, Ltd. (“VSG HK”) entered into a Mutual Non-Disclosure Agreement (“NDA”), which primarily concerned each parties’ ability to protect its information shared with the other party to facilitate discussions regarding a business relationship, but also covered broader aspects of the parties’ potential business relationship. Innotec maintained relationships with factories and suppliers in China and agreed to supply Visiontech with goods and products obtained from these contacts. On March 28, 2013, Innotec Advance Energy Systems, LLC (“Innotec AES”) and Visiontech Sales, Inc. (“Visiontech”) entered into an Exclusivity Agreement (“EA”), which concerns the exclusive purchase and sale of one product, Vivoplay Charger Adapters. The EA contained an arbitration provision that provided, in pertinent part, that “[a]ny controversies or disputes arising out of or relating to [the EA] shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association.” To obtain the product or goods from Innotec’s Chinese contacts, Visiontech had to go through Innotec or receive Innotec’s written permission to contract with the original manufacturer or supplier. Visiontech placed two orders under the EA in February 2016. The goods were shipped to and received by Visiontech, but were not paid for by Visiontech.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Mt. Valley Pipeline, LLC v. Easements to Construct, Operate, & Maintain a Natural Gas Pipeline, 2018 U.S. Dist. LEXIS 15724, 2018 WL 648376 (W.D. Va. Jan. 31, 2018)
Mt. Valley Pipeline, LLC v. Easements to Construct, Operate, & Maintain a Nat. Gas Pipeline, 2018 U.S. Dist. LEXIS 34487, 2018 WL 1144387 (W.D. Va. Mar. 2, 2018)
Mt. Valley Pipeline, LLC v. Easements to Construct, Operate, & Maintain a Nat. Gas Pipeline over Tracts of Land in Giles Cty., 2018 U.S. Dist. LEXIS 36951, 2018 WL 1193021 (W.D. Va. Mar. 7, 2018)
Mt. Valley Pipeline, LLC v. Easements to Construct, Operate, & Maintain a Nat. Gas Pipeline, 2018 U.S. Dist. LEXIS 75780, 2018 WL 2088762 (W.D. Va. May 4, 2018)
Mt. Valley Pipeline, LLC v. Easements to Construct, 2018 U.S. Dist. LEXIS 81337 (W.D. Va. May 15, 2018)
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Atl. Coast Pipeline, LLC v. 5.63 Acres, 2018 U.S. LEXIS 32526, 2018 WL 1097051 (E.D. Va. Feb. 28, 2018)
Atl. Coast Pipeline, LLC v. 6.71 Acres, 2018 U.S. Dist. LEXIS 86151 (W.D. Va. May 22, 2018)
Barr v. Atl. Coast Pipeline, LLC, 815 S.E.2d 783 (Va. July 5, 2018)
Sierra Club v. United States DOI, 722 Fed. Appx. 321 (4th Cir. May 15, 2018)
- Written by: Andrew P. Pearson
A contractor, subcontractor, or supplier may receive a payment only to have the payor shortly thereafter file for bankruptcy. In that case, the trustee for the estate of the bankrupt payor will look at payments made by the payor during the 90 days prior to its bankruptcy filing and may require the return of those payments to the estate. This is known as a preference claim.
An unfair side effect of a preference claim occurs when the deadline for a recipient’s assertion of a mechanic’s lien or payment bond claim expires during the period between receiving the funds and the trustee’s assertion of a preference claim, which results in the recipient losing its ability to protect its claim.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Gold v. Myers Controlled Power, LLC (In re Truland Grp, Inc.), 2018 Bankr. LEXIS 42 (E.D. Va. Bankr. Jan. 8, 2018)
Gold v. Myers Controlled Power, LLC (In re Trustland Grp., Inc.), 2018 Bankr. LEXIS 2188; 2018 WL 3601835 (E.D. Va. Bankr. July 25, 2018)
Claims were brought by the Chapter 7 Trustee of Truland Walker Seal Transportation, Inc. (“TWST”) against a supplier of electrical equipment, Myers Controlled Power, LLC (“Myers”), for the recovery of an alleged preference payment under Section 547 of the Bankruptcy Code, alleging that the payment to Myers was for less than reasonably equivalent value, at a time when the Debtor was insolvent or had an unreasonably small capital to operate its business.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Van Buren v. Earl Ronald Poston & Old Meadow, LLC, 2017 Va. Cir. LEXIS 335 (Cir. Ct. Loudoun Cnty. Nov. 30, 2017)
Louise Van Buren (“Plaintiff”) filed a Complaint against Ronald Poston and Old Meadow, LLC (collectively “Defendants”) in an action to recover damages suffered due to an alleged breach of a residential construction contract between the parties. Upon purchasing a home in April 2016, Plaintiff agreed to use Poston and his company, Old Meadow, for needed renovations and repairs to the home. Old Meadow’s estimate for extensive work on the home expressly noted that any changes would be accomplished by mutually agreed upon change orders.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Chilton-Belloni v. Angle ex rel. City of Staunton, 294 Va. 328 (2017)
The Supreme Court of Virginia ruled on an appeal of two related zoning actions that had been tried together. It addressed whether the circuit court had properly relied on principles of res judicata to refuse to stay an injunction brought by the City of Staunton’s Zoning Administrator against a landowner pending further proceedings before the City’s Board of Zoning Appeals (“BZA”). It also considered whether the circuit court properly granted the injunction against the landowner. The Court concluded that the circuit court had erred and reversed and remanded the injunction.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Kalergis v. Comm’r of Highways, 294 Va. 260, 805 S.E.2d 395 (Oct. 26, 2017)
The Kalergis family (“Kalergis”) owned a farm in Albemarle County that featured certain structures which constituted improvements upon the land. In February 1994, VDOT acquired just over half of the property, which included said improvements, from the Kalergis for $1,150,000 for use in a future highway project called the Western Bypass. The price had been determined by an appraisal of the market value, which valued the land at $286,110 and the improvements at $863,890.
- Written by: Mark A. Burgin, Scott W. Kowalski, Thomas M. Wolf and Kenneth T. Stout
Johnston v. Stephan, 2017 Va. Cir. LEXIS 309 (Cir. Ct. Fairfax Cnty. Oct. 23, 2017)
The Stephans owned real property in Great Falls, Virginia, and hired a general contractor to construct a home on the property. On February 15, 2010, the general contractor and Cole (“Defendant”) entered into a subcontract pursuant to which Defendant installed a roof on the home. Three years later, the Johnstons (“Plaintiffs”) purchased the home form the Stephans. In January 2014, Plaintiffs demanded that Defendant perform further work on the roof, and Defendant declined. On April 5, 2017, Plaintiffs sued Defendant, alleging that Defendant’s refusal to work on the roof violated consumer protection law and breached an alleged contractual warranty.
