- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Pole Green Dev. Co., LLC v. Columbia Gas Transmission, LLC, 785 Fed. Appx. 106 (4th Cir. Oct. 29, 2019)
Pole Green Development Company, LLC (“Pole Green”) sued Columbia Gas Transmission, LLC (“Columbia Gas”) after Pole Green’s prospective agreement to purchase property for residential development fell through because of a pipeline easement held by Columbia Gas. In its amended complaint Pole Green asserted inverse condemnation, unlawful taking, breach of contract, and intentional interference. The district court dismissed the case and Pole Green appealed.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Krauss v. Apex Custom Homes, LLC, 2019 Va. Cir. LEXIS 1203 (Loudoun Cnty. Cir. Ct. Nov. 26, 2020)
On March 24, 2015, Paul and Holly Krauss (“Krausses”) contracted with Scott Prendergast (“Prendergast”) and Apex Custom Homes, LLC (“Apex Homes”) for the construction of a home (the “Home”) and with Daniel Morgan (“Morgan”) and Apex Custom Pools, LLC (“Apex Pools”) for the construction of a swimming pool at the Home (the “Pool”). Prendergast was the sole member of Apex Homes. Morgan was the sole member of Apex Pools. Apex Pools, through Morgan, used Apex Homes’ general contractor license, but neither Prendergast nor Apex Homes knew that Morgan used the general contractor’s license of Prendergast or that Morgan was unlicensed when Prendergast referred the Krausses to Apex Pools. Before the bench trial, Apex Pools filed for bankruptcy.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
In re Kerlavage v. America's Home Place, Inc., 2019 Va. Cir. LEXIS 1188 (Spotsylvania Cnty. Cir. Ct. Dec. 16, 2019)
In re Kerlavage v. America's Home Place, Inc., 2019 Va. Cir. LEXIS 1187 (Spotsylvania Cnty. Cir. Ct. Dec. 23, 2019)
According to Jeffrey Kerlavage’s (“Kerlavage”) Amended Complaint, he contracted with America’s Home Place, Inc. (“AHP”) in June and July of 2014 to build a home. Construction began in October of 2014. AHP hired several subcontractors to perform work on the home. Specifically, Indoor Comfort Experts, LLC (“ICE”) to install an HVAC system, Building Services Group d/b/a Cary Quality Insulation and Building Products (“Cary Quality”) to install a vapor barrier within the crawl space, Vangorder Contracting, LLC (“Vangorder”) for carpentry in the crawl space, Brandonbilt Foundation, Inc. (“Brandonbilt”) to waterproof the home and lay a foundation drain in the crawlspace, and PermaTreat Pest Control Company (“PermaTreat”) to remediate mold in the home. After
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Appalachian Power Co. v. Wagman Heavy Civil, Inc., 2018 U.S. Dist. LEXIS 201259, 2019 WL 6188303 (W.D. Va. Nov. 20, 2019)
Wagman Heavy Civil, Inc. (“Wagman”) and the Virginia Department of Transportation (“VDOT”) contracted for the design and construction of a highway interchange project (the “Project”). Wagman and the Appalachian Power Company (“APCO”) entered into a written contract (the “Written Contract”) for APCO to remove and relocate its utility structures (the “Work”) in order to facilitate construction for the Project.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Radiance Capital Receivables v. Foster, 2019 Va. LEXIS 135 (Va. Oct. 24, 2019)
On February 21, 2006, Robert D. Foster (“Foster”) and Wilson Building, LLC (“Wilson Building”) executed a promissory note in favor of New South Federal Savings Bank (“New South”) based on a construction loan. On March 2, 2006, Foster and James M. Wilson (“Wilson”) executed a Continuing Guaranty agreement (“Guaranty”) with New South in which they personally guaranteed and promised to pay all of Wilson Building’s debt. In the Guaranty, Foster and Wilson agreed to “waive[] the benefit of any statute of limitations or other defenses affecting the … Guarantor’s liability” under the agreement. Wilson Building eventually defaulted on the promissory note and notice of default and demand for payment was sent to Foster and Wilson on August 27, 2010. On November 23, 2015, Radiance Capital Receivables Fourteen, LLC (“Radiance Capital”), the assignee of New South and holder of the promissory note and Guaranty, filed a complaint against
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Faneuil, Inc. v. 3M Co., No. 181202, 2019 WL 4891274 (Va. Oct. 3, 2019)
Plaintiff Faneuil, Inc. (“Faneuil”) entered into a subcontract with 3M Company (“3M”) to provide customer services in support of 3M’s contract with Elizabeth River Crossings Opco, LLC (“ERC”) to assess and collect tolls at facilities between Norfolk and Portsmouth, Virginia. Under the contract between Faneuil and 3M, 3M agreed to pay Faneuil $2.52 million in annual base compensation in equal monthly payments; 3M could reduce those base payments for a fiscal quarter if the previous quarter included fewer than expected toll transactions; 3M must reimburse Faneuil for
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
James River Stucco, Inc. v. Monticello Overlook Owners’ Ass’n, No. CL16-408, 2019 Va. Cir. LEXIS 468 (Cir. Ct. Sep. 30, 2019)
In the case-in-chief, plaintiff, James River Stucco, Inc. (“James River”), alleged that defendant, Monticello Overlook Owners’ Association (“Monticello”), breached their Agreement (“Agreement” or “Contract”) by failing to pay its outstanding balance. Monticello counterclaimed that James River had itself breached first by hiring subcontractors, thereby failing to staff the job with a sufficient number of appropriately skilled “employees” as the Contract provided. Id. The Court held that the Contract did not require James River to use only workers who were on its own payroll.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
W. C. English, Inc. v. Rummel, Klepper & Kahl, LLP, 934 F.3d 398 (4th Cir. 2019)
W.C. English, Inc. (“English”) contracted with Virginia Department of Transportation (“VDOT”) to construct a bridge over Interstate 81 near Lexington, Virginia. English subcontracted with Rummel, Klepper, & Kahl, LLP (“RK&K”) to provide project quality assurance services and with CDM Smith, Inc. (“CDM”) to provide project quality control services.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Cacheris v. City Council of Alexandria, 2019 Va. Cir. LEXIS 443 (Cir. Ct. City of Alexandria Aug. 13, 2019)
The Alexandria School Board (“School Board”) decided that the City of Alexandria’s (“City”) T.C. Williams High School’s (“School”) athletic stadium needed improvement, including the addition of stadium lighting and a new speaker system. The City Council of the City of Alexandria (“City Council”) approved a Development Special use Permit (“DSUP”) that allowed the School Board to install and use the lighting and speaker systems. The Zoning Ordinance approval process mandated that the City Council, acting upon the DSUP, consider the effects of the improvements on neighboring properties and act to minimize any adverse effects the use provided for in the DSUP may have on those properties. Homeowners with properties adjacent to the stadium sought declaratory and injunctive relief to challenge the granting of the DSUP, arguing that the Council failed to consider the factors set forth in the Zoning Ordinance that provide for the protection of neighboring properties. The defendants demurred.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
White Oak Power Constructors v. Mitsubishi Hitachi Power Sys. Americas, Inc., No. 3:17-CV-00355- JAG, (E.D. Va. Aug. 8, 2019)
Old Dominion Electric Cooperative (“Old Dominion”) entered into an engineer, procure, and construct (“EPC”) contract with White Oak Power Constructors (“White Oak”) to design and build a natural gas power plant in Maryland. The EPC contract’s choice of law provision identified Virginia law as the governing law. White Oak encountered several delays during its performance of the EPC contract related to property damage caused by fire, freezing water, and windstorms. The EPC contract required White Oak to achieve substantial completion of the project by May 1, 2017. Due at least in part to delays, White Oak did not achieve substantial completion until April 11, 2018. In response, Old Dominion assessed over $50 million in liquidated damages against White Oak.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Ferguson Enters., Inc. v. F.H. Plumbing, Heating & Air Conditioning, Inc., 830 S.E.2d 917 (Va. Aug. 1, 2019)
Ferguson Enterprises, Inc. (“Ferguson”) distributes Trane-manufactured HVAC equipment. Ferguson negotiated with Trane to provide rebates, known as “claim-backs,” if Ferguson sold Trane’s equipment at a specific discounted price, known as a “contract price.” Ferguson negotiated with Trane to provide contract pricing for one of its customers, F.H. Furr Plumbing, Heating, and Air Condition, Inc. (“Furr”). In 2013, Furr sued Ferguson. In its first amended complaint, Furr alleged that Ferguson sold equipment to Furr above “contract prices” and then submitted false claims to Trane for claim-backs, misrepresented to Furr that the prices charged to Furr were the lowest prices Ferguson could charge, that Ferguson’s misrepresentations were intended to induce Furr to buy Trane-manufactured equipment from Ferguson, and that Furr relied on these misrepresentations in entering into purchase agreements. Ferguson filed a demurrer and plea in bar, contending
