- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
McClung-Logan Equip. Co. v. Harbour Construction, Co., 2019 Va. Unpub. LEXIS 31, 2019 WL 6792473 (Va. Dec. 12. 2019)
In December 2011, McClung-Logan Equipment Company, Inc. (“McClung”) filed suit against Harbour Constructors, Co. and Cross-Land Harbour, Inc. (collectively, “Harbour”) alleging a breach of contract for failing to pay for the rental of construction equipment. In December of 2016, Harbour moved to dismiss and asked the court to enforce the contract’s forum selection clause, which provided for Maryland as the venue. The trial court stayed the Virginia proceedings for a period of six months to allow for refilling and, upon notice to the trial court of a new filing in Maryland, the Virginia proceedings would be dismissed. If, after six months, neither party filed suit in Maryland, the Virginia proceedings would be placed back on the docket for trial. Prior to the expiration of the
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Caldwell-Bono v. State Bldg. Code Tech. Review Bd., 2019 Va. App. LEXIS 273 (Va. Ct. App. Nov. 26, 2019)
Deborah Caldwell-Bono and Benny Bono (the “Bonos”) own properties near the property of Kimberly Bolden and her mother (the “Boldens”) and operate an equestrian center on one of the properties. The Boldens’ property was zoned for agricultural use, but the Boldens were granted a special use permit to host weddings and other events in a converted barn. The Bonos alleged that the Boldens’ event business caused noise, traffic, and other safety risks that affected their equestrian center’s business and made it difficult to find renters. In support of their allegations, the Bonos submitted the opinion of an architect who stated the barn was a fire risk due to exposed wiring in the barn.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Brian Wishneff & Assocs. LLC v. Delshah Dev., Inc., 2019 U.S. Dist. LEXIS 194427, 2019 WL 5865939 (W.D. Va. Nov. 8, 2019)
Brian Wishneff & Associates LLC (“Wishneff”) provides tax credit consulting services to real estate developers and has offices in Roanoke and Arlington, Virginia and each of its members are a Virginia resident. Delshah Development, Inc. (“Delshah”) is a real estate development corporation based in New York City and Michael Shah is its president.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Theuer v. Norfolk Air Heating & Cooling, Inc., 2020 Va. Cir. LEXIS 190 (City of Norfolk Cir. Ct. Oct. 7, 2020)
In count four of her complaint, plaintiff Elise Theuer alleged that defendant Norfolk Air Heating & Cooling, Inc. (“Norfolk Air”) violated the Virginia Home Solicitation Sales Act (the “Act”) regarding a contract for the installation of an HVAC system for Theuer’s historic residential property in Norfolk, Virginia. According to the complaint, the first contact between the parties occurred following Theuer’s call to Norfolk Air for an appointment to discuss a ductless or “mini-splits” system for her home. During the appointment, Norfolk Air provided a typed quote dated September 25, 2017, and Theuer signed the quote on November 21, 2017. The quote did not include any notice of a right of cancellation. After Norfolk Air installed the system, it failed to operate properly, and, after multiple
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
SourceOne, Inc. (DE) v. ESI, Inc. of Tenn., 2020 U.S. Dist. LEXIS 133045 (E.D. Va. Jul. 27, 2020)
DuPont contracted with Veolia Energy Operating Services LLC (“Veolia”) to upgrade the utilities infrastructure at a DuPont plant in Richmond, Virginia. Veolia, in turn, contracted with SourceOne, Inc. (DE) (“SourceOne”) to handle the design, procurement, installation, and commissioning for upgrading the cogeneration plant’s burners from coal-fired to natural gas-fired. SourceOne had contracted with ESI, Inc. of Tennessee (“ESI”) to provide engineering services for the burner upgrades. The SourceOne-ESI agreement included a warranty for ESI’s work and an indemnification provision in favor of SourceOne. ESI recommended Coen Company, Inc. and John Zink to supply the new burners for the project (“suppliers”). Significant problems developed with the burners, resulting in damage to downstream superheater equipment and a decrease of the equipment life.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Cove v. Wallen, 2020 Va. Cir. LEXIS 31 (Fairfax Cnty. Cir. Ct. Mar. 11, 2020)
Plaintiffs Edward and Pamela Cover, along with Defendants Millard Wallen, III and Dianna Wallen and Jeff and Cathy Black formed LLCs for the purpose of purchasing and developing the Stonecroft Business Park (“Stonecroft Project”) in Chantilly, Virginia. Their combined business entity, Stonecroft Business Park, LLC borrowed $13,700,000 from La Jolla Bank to finance the Stonecroft Project. The loan was personally guaranteed by the Coves, Wallens, and Blacks, individually. In September 2010, the venture defaulted on the loan, and the successor bank to La Jolla filed suit in the Eastern District of Virginia seeking over $13.8 million. After the Blacks declared bankruptcy, the Coves and Wallens settled the lawsuit with the bank in late 2011. In return for releasing the Coves
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Mid-Atlantic Arena, LLC v. City of Va. Beach, 2020 Va. Unpub. LEXIS 16 2020 WL 2780000 (Va. May 28, 2020)
The City of Virginia Beach (“City”) and United States Management, LLC (“USM”) entered into a development agreement (“DA”) for USM to construct an entertainment and sports arena in Virginia Beach. USM assigned its rights under the DA to Mid-Atlantic, LLC (“MAA”). As developer, MAA had to construct the arena in accordance with a master plan and obtain financing for the endeavor. The City offered to lease some of its most valuable real estate for the arena, provide $78 million in infrastructure improvements to support the arena, and significant tax incentives. The City retained the right to approve MAA’s construction loan commitment and documents evidencing and securing the construction loan (the “Construction Loan Documents”). The City’s review and
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Advanced Training Grp. Worldwide, Inc. v. ProActive Techs. Inc., 2020 U.S. Dist. LEXIS 68221 (E.D. Va. Apr. 17, 2020)
ProActive Technologies, Inc. (“ProActive”) provides services in the military simulation and training system marketplace. Advanced Training Group Worldwide, Inc. (“ATG”) provides advanced tactical training services for the military, but had never bid on or performed a federal government contract. On November 21, 2011, ProActive contacted ATG about exploring mutual business opportunities. On June 8, 2012, ProActive send ATG a draft Memorandum of Understanding (“Draft MOU”) regarding the formation of a joint venture between ATG and ProActive called Raptor Training Services, LLC (“RTS” or “JV”) to bid and perform the Special Operations Forces RAPTOR III IDIQ contract with the United States Army (the “RAPTOR Contract”). The Draft MOU set
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
James G. Davis Constr. Corp. v. FFTJ, Inc., 841 S.E.2d 642 (Va. May 14, 2020)
On February 19, 2016, James G. Davis Construction Corporation (“Davis”), the general contractor, and H&2 Drywall Contractors (“H&2”) entered into a $1,269,396 subcontract with 10% retainage for H&2 to complete the drywall and metal framing for the project. H&2 entered into a Credit Application and Agreement with FTJ, Inc. f/k/a Ciesco Inc. (“FTJ”) for the purchase of materials. Renan Buendia, principal of H&2, personally guaranteed to pay FTJ any amounts owed by H&2. Davis, H&2, and FTJ entered into a joint check agreement, whereby: (i) FTJ would send invoices to Davis and H&2; (ii) Davis would write joint checks payable to H&2 and FTJ and deliver the checks to H&2; and (iii) H&2 would endorse the check and turn it over to FTJ.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Wasa Props., L.L.C. v. Chesapeake Bay Contrs., Inc., 103 Va. Cir. 423 (City of Chesapeake Cir. Ct. Dec. 11, 2019)
In April 2015, Wasa Properties, L.L.C. (“Wasa”) and Chesapeake Bay Contractors, Inc. (“CBC”) executed a contract for CBC to complete utility work at Lake Thrasher (the “Contract”). Wasa alleged that CBC breached the Contract and caused $405,584.90 in damages by incorrectly installing water lines, which damaged other utility lines. The Contract contained the following (the “Indemnification Provision”):
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Tingler v. Graystone Homes, Inc., 834 S.E.2d 244 (Va. Oct. 29, 2019)
In 2009, George and Crystal Tingler (the “Tinglers”) executed a construction contract with Graystone Homes, Inc. (“Graystone”) to construct a new home on property owned by a family run company, Belle Meade Farm, LLC (“Belle Meade”). The contract did not mention Belle Meade, but it was the owner of the land on which the home was built and it made the payments due under the contract to Graystone. The Tinglers claimed they entered into the contract on behalf of their principal, Belle Meade, and that Belle Meade was in privity of contract with Graystone. Alternatively, the Tinglers argued that Belle Meade was an intended third-party beneficiary.
