Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: February 10, 2023

Marcus v. Dennis, 2022 U.S. Dist. LEXIS 87149, 2022 WL 1527524 (E.D. Va. May 13, 2022)

Marlene Dennis (“Dennis”) is the sole owner and employee of Marlene Dennis Design, LLC (“MDD”), which operates out of Virginia. On October 15, 2018, Gregory H. Marcus and Jamie N. Marcus (“Plaintiffs”) entered into a contract with MDD for design services for constructing and finishing a new home in Maryland (the “Contract”). Dennis acted as the “Designer” under the Contract, which was responsible for procurement and installation of flooring, wall coverings, finishes, furniture, and fixtures after establishing a design concept. The Plaintiffs agreed to pay: (i) Dennis $175 per hour, not to exceed $50,000 for design consultation and $50,000 for furniture selection and procurement; and (ii) no more than $250,000 for furnishings, rugs, artwork, decorative lighting, and accessories. In November of 2020, Dennis sent the Plaintiffs an invoice reflecting consultation charges from July 15, 2019 through November 2, 2020, amounting to $68,000. Dennis also informed the Plaintiffs that the total contract fees would exceed the original $100,000 cap amount. The Plaintiffs paid the November invoice and other invoices, amounting to $124,722.41. In January of 2021, Dennis invoiced the Plaintiffs $255,560.72 for materials purchased to facilitate the design plan and Plaintiffs wired $255,000 to Dennis. Despite Plaintiffs’ requests, Dennis failed to provide invoices from vendors for these materials until the Plaintiffs threatened litigation against Dennis. The invoices provided by Dennis showed that Dennis had inflated material costs before charging the Plaintiffs. The Plaintiffs’ home was completely empty when they moved in on April 10, 2021. The Plaintiffs had to hire and pay another design team $85,114.50 to complete Dennis’ work, which remained unfinished. On September 24, 2021, the Plaintiffs filed a complaint for a breach of contract against MDD, breach of fiduciary duty against MDD and Dennis, violation of the Virginia Consumer Protection Act (VCPA) against MDD and Dennis, and a claim to pierce the corporate veil. MDD and Dennis moved to dismiss the Plaintiffs’ complaint under FRCP 12(b)(6).

The Court held that the Plaintiffs pled a breach of contract claim against MDD. In Virginia, the elements for a breach of contract action are: (1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant’s violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation. Contractual obligations can be waived when a party has knowledge of the facts basic to the exercise of the right and intent to relinquish that right. MDD failed to follow the Contract’s requirements by not providing monthly invoices and inflating the cost of materials, which amounted to an undisclosed markup and breach of the Contract.

The Court dismissed with prejudice the Plaintiffs’ breach of fiduciary duty claim against MDD and Dennis because the duties owed to the Plaintiffs arose only because of an agreement between the parties, rather than a special relationship that would give rise to tort liability.

The Court permitted the VCPA claim against MDD to proceed but dismissed the VCPA claim against Dennis as an individual. Under the VCPA, a “supplier” is “a seller, lessor or licensor who advertises, solicits or engages in consumer transactions.” The VCPA prohibits “fraudulent acts or practices committed by a supplier in connection with a consumer transaction,” including forms of misrepresentation related to the provision of goods or services, including “[u]sing any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.” The VCPA defines a “consumer transaction” as “[t]he advertisement, sale, lease, license or offering for sale, lease, or license, of goods or services to be used primarily for personal, family or household purposes.” Like other claims of fraud, Virginia courts hold those pleading VCPA claims to a higher pleading standard whereby the complaint must include the identification of “the agents, officers and employees of the entities who are alleged to have perpetrated the fraud and the details of time and place of the fraudulent acts.” Moreover, the allegations “must be of existing fact, not merely an opinion or an unfulfilled promise or statement to future events.” “Virginia law prohibits shoehorning agents of a supplier into the ‘supplier’ definition.” Only MDD signed the Contract and the Contract did not name Dennis as the “Designer,” so Virginia law disqualified the Plaintiffs from bringing an action against Dennis in her capacity as an agent for MDD. The Court dismissed, with prejudice, the Plaintiffs’ claim to pierce the corporate veil. The Plaintiffs only included conclusory allegations that MDD was undercapitalized and that Dennis siphoned funds for personal benefit.

Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: February 03, 2023

Iovino v. Michael Stapleton Assocs., 2022 U.S. Dist. LEXIS 74754, 2022 WL 1213278 (W.D. Va. Apr. 25, 2022);

Iovino v. Michael Stapleton Assocs., 2022 U.S. Dist. LEXIS 153118, 2022 WL 3684624 (W.D. Va. Aug. 25, 2022)

The Department of State (“DoS”) contracted with Michael Stapleton Associates, Ltd. (“MSA”) to train explosive detection canines. In October of 2015, MSA hired Dr. Karen Iovino (“Iovino”) to work part time as a veterinarian. Iovino expressed concerns about MSA’s dogs being overworked and poorly sheltered. Iovino’s supervisor, Dr. Michael Ratcliff (“Ratcliff”), dismissed her concerns. Iovino claimed MSA’s employees committed time sheet fraud by taking unofficial paid time off and leaving early on Fridays but billing the DoS for the entire workday. She alleged that the DoS paid more than $170,000 a year for unworked hours. Iovino also claimed that she had worked more than 40 hours a week on multiple occasions, but was not paid overtime. Instead, MSA encouraged her to take unofficial paid time off. Iovino alleged that MSA abused its power in hiring and firing decision. Finally, Iovino noted that MSA’s program manager and Iovino’s supervisor, Zane Roberts, was suspended for 10 days and his responsibilities reduced when he shared Iovino’s concerns about the treatment of the dogs. On February 24, 2017, Ratcliff asked Iovino to work for MSA full-time after her part-time contract expired in August 2017.

On July 6, 2017, Iovino filed a whistle blower complaint with the DoS’s Office of the Inspector General (OIG), based on MSA’s time sheet fraud, dying canines, and abuses of power related to hiring and firing decisions. Eight days later, Ratcliff told Iovino that MSA had created a new, full-time veterinarian position instead of converting Iovino’s part-time position into a full-time position and that she would have to reapply for the full-time job. On August 4, 2017, Iovino was suspended without pay based on MSA’s belief that she had leaked confidential information. MSA allowed her part-time position to expire and hired someone else to fill her position. Iovino filed a retaliation complaint with the OIG, asserting that MSA’s choice to not convert her position to a full-time role was made in retaliation for her whistleblower complaint. The OIG agreed and MSA appealed. On October 30, 2019, the DoS reversed the earlier determination. Iovino then filed a complaint in the U.S. District Court. MSA moved to strike allegations in Iovino’s pleadings and argued that Iovino had not exhausted her administrative remedies with respect to her complaint.

Federal law prohibits government contractors from retaliating against employees who disclose information that the employee reasonably believes to be evidence of gross mismanagement of a government contract to a federal employee responsible for overseeing that contract. A complainant who believes she was retaliated against may submit a claim to the relevant executive agency’s Inspector General, who must investigate the claim and determine if the complainant was retaliated against. If relief is denied, the complainant will be deemed to have exhausted all administrative remedies and may file an action in the appropriate district court. On October 30, 2019, Iovino was denied relief by the DoS and, thus, had exhausted her administrative remedies with respect to the whistleblower retaliation complaint. Iovino’s complaint, however, contained 15 paragraphs that presented alternative theories of recovery that were not reasonably related to her OIG complaint that she was retaliated against solely for her whistleblower filing. Iovino had not exhausted the administrative process for these allegations, so the Court granted MSA’s motion to strike as to these 15 paragraphs.

As directed by the Court, Iovino filed an amended complaint. MSA filed its answer and counterclaim, alleging that Iovino breached her Non-Disclosure Agreement (“NDA”). Iovino moved to strike MSA’s affirmative defenses and moved to dismiss or, alternatively, for judgment on the pleadings. Iovino argued that MSA’s counterclaim does not state a plausible claim for breach of contract and, even if it did, the NDA was illegal on its face. A breach of contract action requires: (1) the existence of a contract; (2) the plaintiff’s performance pursuant to the contract; (3) the defendant’s breach of its contractual obligations; and (4) damages resulting from the breach. The Court held that MSA plausibly alleged these elements by alleging the existence of a contract (the NDA), that Iovino breached the NDA by her admitted disclosures to news outlets, and Iovino’s disclosures caused MSA financial and reputational harm of $2,000,000.00. The Court denied Iovino’s motion for judgment on the pleadings under her theory that the NDA was illegal under federal regulations.

Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: January 27, 2023

Herren Farms, LLC v. Martin, 2022 U.S. Dist. LEXIS 127175, 2022 WL 2811650 (W.D. Va. Jul. 18, 2022)

On June 28, 2016, Lawrence Martin (“Martin”) emailed 3 designs to Herren Farms, LLC (“Herren”) to give Herren a general idea of what Herren could do regarding Herren’s project involving the construction of 3 large grain silos and a 115-foot grain elevator. A few days later, Martin emailed Herren detailed specs for a facility utilizing a 75-foot grain elevator and a conveyor system to transport grain to the largest of the 3 silos. Negotiations continued. Martin sent Herren a subsequent email later that same day promoting an alternative design, this time featuring a 115-foot elevator and removing the conveyor system. Later, Martin emailed Herren detailed proposals for the construction of the grain handling and storage system utilizing the 115-foot elevator design. In addition to the itemized “Estimate/Contract” documents attached to the email, the body of the email included Martin’s electronic signature and instructed Herren to return with written approval and a 10% deposit. The total estimate for the final version of the project was $285,752.00, which included $26,839.00 in labor for Herren to assemble and erect the elevator. The manufacturer’s guidance manual recommended guy wires and a bracing system for the elevator that takes into consideration wind loads, the design for which should be reviewed by a licensed engineer. Martin admitted in depositions that assembly and erection of the elevator required “on-site welding and brackets for guy wires,” which were his responsibility. Martin did not retain or consult any civil or structural engineers when erecting Herren’s elevator. Martin also installed the guy wire brackets at greater intervals, used two fewer guy wires, and used fewer concrete anchors than instructed by the manufacturer. Herren’s elevator collapsed in high winds only a few months after its construction. An engineering report prepared by Herren’s insurer concluded that the collapse resulted from Martin’s failure to adequately design and manufacture the elevator’s wind-loading restraints, which Martin did not dispute.

The Court denied Martin’s motion for summary judgment based on the statute of limitations because a rational factfinder could conclude that the parties’ contract is signed and is for services. A rational jury could find Herren’s claim timely only if it could also find that the relevant contract was for services and was signed. Title 8.2 of the Virginia Code applies to transactions for goods. The term “goods” includes things that “are movable at the time of identification to the contract for sale” and does not include fixtures to realty unless intended “to be severed from realty.” Where hybrid contracts are at issue, the applicability of UCC provisions depends on whether the predominant purpose of the transaction was the rendition of services (with goods incidentally involved) or the sale of goods (with labor incidentally involved). Three factors are considered in determining a contract’s primary purpose: (1) the contract’s language; (2) the nature of the supplier’s business; and (3) the intrinsic worth of the materials. A factfinder could conclude that the underlying transaction primarily concerned construction services, not goods. Virginia’s Uniform Electronic Transactions Act provides that an “electronic signature” is any “symbol … attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” A rational jury could find that Martin’s name in the email’s signature line was “attached to or logically associated” with Herren’s offers “with the intent to sign.” If so, Martin’s electronic signature had the same legal effect as any pen-and-ink signature.

Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: January 20, 2023

W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP, 2021 U.S. Dist. LEXIS 197281, 2021 WL 4782274 (W.D. Va. Oct. 13, 2021)

In 2009, the Virginia Department of Transportation (“VDOT”) awarded W.C. English, Inc. (“English”) a contract to build a bridge over Interstate 81 (the “Prime Contract”). English retained Rummel, Klepper & Kahn, LLP (“RK&K”) to provide quality assurance services. The Prime Contract required an 8.5-inch concrete deck reinforced by two separate mats of crisscrossed rebars, with a 1.5-inch concrete cover between the mats and a 2.75-inch cover over the top. To create the cover, English initially installed 2.5-inch slab runners between the two mats. Along the way, a decision was made to insert 1.75-inch slab runners, which lifted the top cover to 3.75-inches instead of 2.75-inches. VDOT refused to accept the bridge. English had to demolish and rebuild the bridge at a cost of $2.8 million. English sued RK&K for damages or indemnification. A four-day trial was held. English offered testimony from its project coordinator that RK&K’s quality assurance manager instructed English to switch the slab runner from 2.5-inch to 1.75 inch, threatened to stop work and withhold payment to English if the substitution was not made, and told English employees that the shorter slab runners met the necessary specifications. English also offered evidence that RK&K conducted dry-run measurements that showed that the bridge was out of specification, but RK&K took no action and certified that the “spacing, location, and edge clearances of all reinforcing mats conform.” English’s expert opined that RK&K failed to meet its standard of care and was primarily responsible. RK&K denied instructing English to use the shorter slab runners, claimed it attempted to convince English that the concrete pour should be postponed because the dry run numbers were out of specification, claimed that English was aware the bridge was outside of specification before the concrete pour, and its expert opined that RK&K met its standard of care. After hearing evidence, the jury returned a verdict of 70% of the damages presented by English. RK&K then sought a directed verdict or a new trial.

The Court denied RK&K’s motion because the jury had ample evidence from which to make a reasonable determination of fault and the Court had no legal basis to throw out the verdict. A court may only grant a renewed motion for judgment as a matter of law if it finds a reasonable jury would not have had a legally sufficient basis to find for the party on that issue and the extraordinary remedy is only appropriate when the verdict is against the clear weight of the evidence, was based on false evidence, or would result in a miscarriage of justice. As a matter of law, the Court could not say that the evidence was insufficient to enable the jury to rationally allocate 70% of fault to RK&K. As to RK&K’s challenge to English’s damages calculation including lost office overhead costs, Virginia allows a plaintiff in a contract dispute to recover general administrative expenses that it takes to run a business that would have been absorbed by revenue producing work but for delays caused by the defendant’s breach. English’s schedule analytics expert testified there was 164 days of delay and English presented evidence of how it was using resources during this time, including how it was prudent for English to negotiate with VDOT to try to save the bridge instead of removing and rebuilding the bridge. English also presented evidence of the increase in its general administrative costs due to the delay. The Court rejected RK&K’s claim that it was entitled to a reduction in its damages award based on English’s settlement with another contractor because the jury’s award reflects RK&K’s share of responsibility alone, so Virginia Code § 8.01-35.1(A)(1) is inapplicable because it applies to when two or more persons are liable for the same injury. As to the jury’s award of $839,000 in prejudgment interest for seven years of interest, the Court held that Virginia law delegates to the factfinder complete discretion in awarding prejudgment interest.

Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: January 13, 2023

Concord Crossroads, LLC v. Human Capital Res. & Concepts, Inc., 2021 U.S. Dist. LEXIS 222063, 2021 WL 5323693 (E.D. Va. Nov. 16, 2021)

On March 23, 2018, Human Capital Resources and Concepts, Inc. (“HCRC”), Concord Crossroads, LLC (“Concord”), and M. Holland Group, LLC (“MHG”) entered into a teaming agreement, whereby the parties agreed that if HCRC was named the prime contractor in a contract with the United States Department of Defense (“DoD”), then HCRC would offer subcontracts to Concord and MHG. The DoD awarded HCRC the contract (the “Contract”) and HCRC was named the prime contractor. While negotiating subcontract terms, Concord provided HCRC with personnel to help HCRC perform the Contract with the understanding that Concord would be compensated when the parties reached an agreement on the subcontracts. However, negotiations broke down and Concord unsuccessfully sought compensation for 2 months of work performed by Concord’s personnel. Concord sued HCRC for unjust enrichment and fraud in the inducement.

The Court denied Concord’s Motion for Summary Judgment and HCRC’s Motion for Partial Summary Judgment because there were a substantial number of disputed material facts. For unjust enrichment, a plaintiff must establish that: (1) plaintiff conferred a benefit on the defendant; (2) defendant knew of the benefit and should reasonably have expected to pay plaintiff; and (3) defendant accepted or retained the benefit without paying for its value. The Court found that there was a disputed material fact as to the value of the benefit Concord conferred on HCRC. As to fraud in the inducement, HCRC argued there was no promise to induce performance. In Virginia, fraud must relate to a present or pre-existing fact and cannot ordinarily be predicated on unfulfilled promises or statements as to future events. A promisor may commit fraud if the promisor has no intent to perform at the time the promise is made. HCRC’s president promised to compensate Concord out of her own pocket. HCRC, itself, however, argued that Concord’s personnel simply volunteered to perform Contract work without a promise or expectation of compensation. Thus, the Court found there were disputed material facts.

Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: January 06, 2023

BAE Sys. Ordnance Sys. v. Fluor Fed. Sols., LLC, 2021 U.S. Dist. LEXIS 247425, 2021 WL 6134685 (W.D. Va. Dec. 29, 2021)

BAE Sys. Ordnance Sys. v. Fluor Fed. Sols., LLC, 2022 U.S. Dist. LEXIS 58432, 2022 WL 969773 (W.D. Va. Mar. 30, 2022)

The US Army Joint Munitions Command (“Army”) contracted with BAE Systems Ordnance Systems, Inc. (“BAE”) to operate and maintain the Radford Army Ammunition Plant (“RFAAP”) under a basic ordering agreement (“BOA”). Under BOA Task Order 002, BAE contracted to replace the legacy NC facility at the RFAAP with a newer one (the “NC Project”). Initially, BAE subcontracted the NC Project to Lauren Engineers & Constructors (“Lauren”), but later terminated Lauren. Despite terminating Lauren, BAE’s timeline to complete the NC Project remained unchanged and BAE was required to use Lauren’s design for the NC Project. After terminating Lauren, BAE solicited bids from other subcontractors using a Request for Proposals (“RFP”) that included a Statement of Work (“SOW”) describing the requirements of the NC Project’s design and construction. BAE gave interested bidders access to the Lauren design and other related documents and required the selected subcontractor to perform in accordance with the 85% complete Lauren design, that the Lauren design could be relied on for accuracy, and the selected subcontractor only had to complete the unfinished parts. Fluor Federal Solutions, LLC (“Fluor”) submitted a request for information (“RFI”) asking BAE about the standards referenced in the SOW. BAE allegedly responded by emphasizing the importance of the Lauren design. During the bid and review process, Fluor was unable to determine the completeness of the Lauren design but relied on BAE’s assertion that the design was 85% complete.

BAE rejected Fluor’s initial bid as being too high given what BAE had already paid Lauren for its design and told Fluor to lower its bid because the design was close to complete. Fluor lowered its price and submitted another bid proposal that outlined a firm-fixed price design/build that forecasted 32 months to complete the NC Project. BAE awarded Fluor an Undefinitized Contract Action (“UCA”) in an amount of $9 million dollars, later increased to $32 million. BAE selected the equipment systems and retained responsibility for the process design, while Fluor was responsible for the design and construction of systems to support BAE’s plans. Under the UCA, Fluor began procuring materials and physical construction before a formal subcontract was agreed upon. On December 17, 2015, BAE and Fluor agreed to a firm fixed price design and build subcontract (the “Subcontract”) in which Fluor agreed to design, construct, and partially commission the NC Project for $245,690,422.00, which included money spent already in the UCA. The Subcontract included an unforeseen contingency provision, which set aside an additional $14 million, “other than changes to the contract compensable under the Changes clause.”

Fluor did not meet its forecasted timeline. Over the subsequent 5 years, the schedule continued to be pushed out by Fluor due to various causes. At several points, the Army issued BAE show cause orders and BAE forwarded the same to Fluor. When this litigation began, Fluor was scheduled to complete its work by December 2020, 2.5 years beyond the originally agreed upon completion date.

On September 30, 2020, BAE sued Fluor for breach of contract. On May 24, 2021, Fluor counterclaimed for breach of contract, quantum meruit, and unjust enrichment. Fluor’s counterclaim alleged that Fluor was not at fault for failing to meet the agreed upon schedule and Fluor had $183 million in outstanding change proposals when the litigation was filed.

Fluor moved to dismiss BAE’s breach of contract claim related to Descope Work and breach of contract claim for recovery based on Fluor’s alleged delay. The Court denied Fluor’s motion to dismiss BAE’s breach of contract claim because BAE alleged plausible claims. The Court denied Fluor’s motion to dismiss BAE’s $9 million in concessions to the Army because BAE plausibly alleged this was a direct and not a consequential damage that BAE suffered because of Fluor’s breach of the Subcontract. The Court granted BAE’s motion to strike Fluor’s damages that exceeded the $30 million cap in the Subcontract. In Virginia, parties may limit their risk of loss through contract as long as it does not contravene public policy.

The Court also held that Virginia Code § 11-4.1:1 was inapplicable. Virginia Code § 11-4.1:1 provides that “A subcontractor … may not waive or diminish … his rights to assert claims for demonstrated additional costs in a contract in advance of furnishing any labor, services, or materials. A provision that waives or diminishes a subcontractor’s … right to assert claims for demonstrated additional costs in a contract executed prior to providing any labor, services, or materials is null and void.” Because Fluor performed work under the UCA before the Subcontract was executed, the Court held that Virginia Code § 11-4.1:1 was inapplicable. The Court’s interpretation of Virginia Code § 11-4.1:1 should be given further consideration by readers.

The Court denied BAE’s motion to dismiss Fluor’s breach of contract counterclaim related to the implied warranty of plans, designs, and specifications under the Spearin doctrine. The Court found the Subcontract to be ambiguous regarding design responsibility, allowing for a plausible implied warranty of design counterclaim.

The Court denied BAE’s motion to dismiss Fluor’s breach of contract counterclaim related to equitable adjustment of the Subcontract price. Neither the Subcontract nor the Changes provision of the FAR provide for equitable adjustment of change proposals made by Fluor that were not accepted by BAE. However, FAR 52-243-4, entitled “Changes,” incorporated by reference into the Subcontract, provides for equitable adjustment for changes required by the Contracting Officer. If BAE falls into this category for changes Fluor alleged BAE required it to make, Fluor’s counterclaim would state a plausible claim for equitable adjustment for costs incurred by Fluor to make changes required by BAE.

The Court denied BAE’s motion to dismiss Fluor’s breach of contract counterclaim related to BAE’s alleged breach of the duty of good faith and fair dealing. Fluor adequately plead that BAE breached the duty of good faith and fair dealing by misrepresenting the status of the Lauren design, interfering with Fluor’s performance of the Subcontract, and not compensating Fluor for work unilaterally implemented by BAE.

The Court dismissed Fluor’s unjust enrichment and quantum meruit claims. Because unjust enrichment claims are only appropriate in the absence of an enforceable contract, and neither party here challenged the validity or enforceability of the Subcontract, Fluor’s unjust enrichment claim had to be dismissed. The Court also found that the compensation sought by Fluor was for work covered by the Subcontract.

Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: April 01, 2022

White Oak Power Constructors v. Mitsubishi Hitachi Power Sys. Ams., Inc., 2020 U.S. Dist. LEXIS 109637, 2020 WL 3414682 (E.D. Va. June 22, 2020)

The Wildcat Point Generation Facility, a nominal 1,000 megawatt combined-cycle natural gas fired power plant in rural Maryland, includes two gas turbines, associated generators, and related components supplied by Mitsubishi Hitachi Power Systems Americas, Inc. (“Mitsubishi”). The Equipment Purchase Agreement (“EPA”) between Mitsubishi and the power plant owner was subsequently assigned to the engineer-procure-construct contractor, White Oak Power Constructors (“White Oak”), a joint venture between PCL Industrial Construction Company and engineering firm Sargent & Lundy LLC. The EPA included several liquidated damages provisions under which Mitsubishi would pay for delays in document deliveries, equipment deliveries, and substantial

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Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: March 25, 2022

Krevskop v. Town Council (In re July 17, 2017 Decision of the Bd. of Zoning Appeals), 2020 Va. Cir. LEXIS 101 (Faifax Cnty. Cir. July 24, 2020)

Julia Kreyskop and Brian Joseph Buyniski (“Petitioners”) live at a home in Vienna, Virginia that was located at the corner of Scott Circle Southwest and Cottage Street. Vienna Town Code § 18-33.E requires the following setbacks: (i) 12’ on side yards bordering other buildings or dwellings; (ii) 25’ on side yards bordering a street; (iii) 35’ rear yards; and (iv) 25’ front yards. Petitioner have a rear deck. The left portion of the deck encroaches into the rear yard setback by 7.4 feet, but was permissible because taxes were paid on it in excess of 15 years. The Petitioners requested a variance so they could replace the right-hand portion of the deck with an enclosed 12.3’x14’ screened porch, which would encroach 10.8’ into the rear yard setback. In Petitioners’ application for a variance, they noted that the house was built diagonally on the lot in 1959, the lot is wider than it is deep, the corner of the house closest to the rear property line was 35.7’ away from the property line, and the other sides of the house would either violate the setback requirements or be challenging due to existing gas, cable, power lines, and other easements. On July 17, 2019, a public

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Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: March 18, 2022

Mendes v. Beahm, 2020 U.S. Dist. LEXIS 111986, 2020 WL 3473656 (W.D. Va. Jun. 25, 2020)

Plaintiff Nelson Mendes purchased waterfront property in Warren County, Virginia, in May 2017 with plans to open a tree nursery and eventually build a residence. Mendes’s contractors began to clear trees and other obstructions, and Mendes built a greenhouse himself. A month later, the Warren County Building Inspection Department (“Building Department”) issued a stop work order and instructed Mendes to obtain a land disturbance permit. When Mendes sought clarification, the Building Department informed him that a neighbor reported Mendes’s contractors removing vegetation and tossing it into the river, which prompted a Virginia DEQ site inspection. The neighbor later recanted her story and admitted her false report was a result of her being upset by

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Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith

Published: March 11, 2022

Sanders v. Wayne, 2020 Va. Cir. LEXIS 25 (Washington Cnty. Cir. Ct. Feb. 20, 2020)

According to Mark Sanders, Gregory Roberts, and Larissa Roberts (collectively, the “Plaintiffs”), Plaintiffs’ vehicle was slowing to avoid striking Joshua Mathis (“Mathis”) after Mathis, in operating the vehicle in front of Plaintiffs’ vehicle while in the course of his employment with Lakeside Ready Mix, LLC (“Lakeside”), slowed to turn left into a work zone without signaling. At that time, Guillermo Sanchez-Rivera’s (“Rivera”) vehicle and Alan Smith’s (“Smith”) vehicle collided with the Plaintiffs’ vehicle and each other. The Plaintiffs’ alleged that Mathis, Rivera, and Smith negligently and recklessly operated their vehicles by following too closely, failing to keep a proper lookout, failing to signal when turning, and stopping abruptly. With respect to the work zone, the Plaintiffs’ alleged that Orders Construction Company, Inc. (“Orders”) was under contract with the Virginia Department of Transportation (“VDOT”) as the general contractor and that Orders hired

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