Articles Posted in Construction Law

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Respondents Mesiti Development, Inc., JVL Construction Company, Inc., and Brook Hollow Corporation, appealed a superior court order dismissing their counterclaims against petitioner Town of Londonderry. In 2012, the Town filed a bill of interpleader to determine whether $264,517.02 in surplus impact fees collected under the Town’s impact fee ordinance should have been refunded to the developers who paid the impact fees or to the current owners of the properties for which the fees had been paid. Although the Town’s impact fee ordinance specifies that the current owners are entitled to the refunds, the Town sought to confirm that the ordinance is consistent with the impact fee statute. The bill listed seventeen properties and their respective impact fee payors and current owners. Additional parties intervened thereafter. Several parties, including the respondents, moved to add counterclaims alleging, among other things: (1) violations of RSA 674:21, V; (2) negligence; (3) violation of fiduciary duties owed to impact fee payors; (4) violation of the public trust in government; and (5) violation of the municipal budget law. The Town filed a motion to dismiss these counterclaims, which the trial court granted. This appeal followed. Finding no reversible error in the order dismissing these claims, the Supreme Court affirmed. View "Town of Londonderry v. Mesiti Development, Inc." on Justia Law

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Defendants, Keith McNamara, Shirley Benton, and Jerel Benton, appealed: (1) a jury verdict in favor of the plaintiffs, Richard and Mary Murray, on their claim that the defendants breached the implied warranty of workmanlike quality; (2) a Superior Court order denying their motion to dismiss the plaintiffs' New Hampshire Consumer Protection Act (CPA) claim; and (3) a Superior Court order finding that the defendants violated the CPA when they built the plaintiffs' home with latent structural defects that caused mold growth. Defendants argued that, because plaintiffs' claim was exempt from the CPA, the trial court erred by denying their motion to dismiss. Defendants added that the trial court erred by denying their motion for a judgment notwithstanding the verdict (JNOV) on the plaintiffs breach of implied warranty claim. There is no dispute that the transaction at issue here is the defendants alleged construction of the house with latent structural defects, not any representations that the defendants made to others during or after construction. The New Hampshire Supreme Court affirmed, finding that because the house was completed in 2004 and was purchased by the plaintiffs five years later and the allegedly wrongful transaction occurred more than three years before the plaintiffs "knew or reasonably should have known" of it, the construction of the house was an exempt transaction pursuant to RSA 358-A:3, IV-a and that plaintiffs' CPA claim should have been dismissed. Thus, the Court reversed the trial court's ruling on the CPA claim. However, the Court was not persuaded that defendants were insulated from liability on the breach of the implied warranty of workmanlike quality claim. Because the Court reversed the trial court's judgment on the CPA claim, defendants failed to show that they were prejudiced with respect to the breach of warranty claim. View "Murray v. McNamara" on Justia Law

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The respondents, Shared Towers VA, LLC and NH Note Investment, LLC, appealed, and petitioner Joseph Turner, individually and as trustee of the Routes 3 and 25 Nominee Trust, cross-appealed, Superior Court orders after a bench trial on petitioner’s petition for a preliminary injunction enjoining a foreclosure sale and for damages and reasonable attorney’s fees. The parties’ dispute stemmed from a commercial construction loan agreement and promissory note secured by a mortgage, pursuant to which petitioner was loaned $450,000 at 13% interest per annum to build a home. Respondents argued the trial court erred when it: (1) determined that they would be unjustly enriched if the court required the petitioner to pay the amounts he owed under the note from November 2009 until April 2011; (2) applied the petitioner’s $450,000 lump sum payment to principal; (3) excluded evidence of the petitioner’s experience with similar loans; (4) ruled that, because the promissory note failed to contain a "clear statement in writing" of the charges owed, as required by RSA 399-B:2 (2006), respondents could not collect a $22,500 delinquency charge on the petitioner’s lump sum payment of principal; and (5) denied the respondents’ request for attorney’s fees and costs. Petitioner argued that the trial court erroneously concluded that respondents’ actions did not violate the Consumer Protection Act (CPA). After review, the Supreme Court affirmed in part, reversed in part, vacated in part, and remanded: contrary to the trial court’s decision, petitioner’s obligation to make the payments was not tolled. Because the loan agreement and note remained viable, it was error for the trial court to have afforded the petitioner a remedy under an unjust enrichment theory. The trial court made its decision with regard to the payment of $450,000 in connection with its conclusion that the petitioner was entitled to a remedy under an unjust enrichment theory. Because the Supreme Court could not determine how the trial court would have ruled upon this issue had it not considered relief under that equitable theory, and because, given the nature of the parties’ arguments, resolving this issue requires fact finding that must be done by the trial court in the first instance, it vacated that part of its order and remanded for further proceedings. In light of the trial court’s errors with regard to the attorney’s fees and costs claimed by respondents, the Supreme Court vacated the order denying them, and remanded for consideration of respondents’ request for fees and costs. The Supreme Court found no error in the trial court’s rejection of petitioner’s CPA claim. View "Turner v. Shared Towers VA, LLC" on Justia Law

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Defendant, Suzynne D. Cumminngs and S.D. Cummings & Co., PC, appealed a Superior Court order awarding $44,403 to plaintiffs, Robert Audette and his company, H&S Construction Services, LLC (H&S), for breach of contract. Defendants provided various accounting and business services to Audette and his then-partner, Paul Fogarty, including helping them to start their construction business partnership, as well as preparing tax returns for both the business and Audette and Fogarty personally. In 2007, defendants helped Audette and Fogarty dissolve their partnership. One of the final acts defendants worked on for H&S was the placement of a mechanic's lien on a property on which H&S worked: the municipality halted construction on the project when H&S was approximately ninety-five percent complete. The lien placed on the property was for $44,403. Ultimately, plaintiffs’ 120-day statutory lien had not been timely secured or recorded, therefore it had lapsed. Plaintiffs brought suit against defendants in November 2009 for failing to secure the lien. The trial court found for plaintiffs and awarded damages in the amount of $44,403. Finding no error in the Superior Court's judgment, the Supreme Court affirmed. View "Audette & v. Cummings" on Justia Law

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Plaintiff Victor Virgin Construction Corporation appealed a Superior Court remitting a jury award following an advisory jury finding of breach of contract and negligent misrepresentation by defendant New Hampshire Department of Transportation (DOT). DOT cross-appealed, asking that the award be further reduced. In 2008, Virgin bid on a DOT project to replace a stone box culvert located underneath Depot Road in Hollis. Virgin submitted the lowest bid and was awarded the contract. After completion of the project, DOT paid Virgin the sum agreed to in the contract with only a minor upward adjustment. Virgin sued DOT for both breach of contract and negligent misrepresentation. The trial court denied DOT's request to bifurcate the trial; subsequently the jury found in favor of Virgin. DOT then moved for a new trial or to set aside the jury's damages award. The trial court granted remittitur, but did no enter a finding of liability on the breach of contract claim, finding that the award could only be sustained on the negligent misrepresentation claim. Virgin then appealed, seeking the full amount of damages awarded by the jury. The Supreme Court found that Virgin's negligent misrepresentation claim for money damages was capped by statute, therefore it was not entitled to the full amount of damages originally awarded by the jury. That cap does not apply to breach of contract, however, and because the trial court did not include findings with regard to liability on the breach of contract claim, the case was remanded for further proceedings. View "Victor Virgin Construction Corp. v. New Hampshire Dep't of Transportation" on Justia Law

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Defendant John Genovesi appealed the superior court's refusal to dismiss a claim against him for professional negligence brought by plaintiff Kimball Union Academy (KUA). KUA wanted a new field house built for its campus. The designer was supposed to supply a locally licensed architect and engineer for the project. Defendant was not licensed in New Hampshire nor did he live in state, but was hired anyway to serve as project engineer. Among other things, defendant failed to provide special inspection instructions for the footings and foundation system as required by the local building code. KUA had a number of problems with the footing and foundation that prompted it to terminate its contract with the designer and sue all parties involved. Defendant moved to dismiss the complaint for lack of personal jurisdiction. Upon review, the Supreme Court found that defendant's design work in New Jersey led to the injury to KUA in New Hampshire. The Court therefore affirmed the trial court's decision. View "Kimball Union Academy v. Genovesi" on Justia Law

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Defendants Stryker Biotech, LLC, Stryker Sales Corporation (collectively Stryker) and Turner Construction Company, appealed a superior court ruling which found them liable on a theory of unjust enrichment and awarded damages to the plaintiff, Axenics, Inc. f/k/a RenTec Corporation. Axenics cross-appealed, challenging the amount of damages awarded and the trial court's failure to find the defendants liable on its breach of contract and New Hampshire Consumer Protection Act (CPA) claims. This case arose from the construction of a biotech facility for Stryker for which Turner served as the general contractor. Axenics subcontracted with Turner to furnish labor, materials, equipment, and services for the installation of "process pipe" at the facility. A dispute arose when Axenics notified Turner of additional change orders related to delays and work that it believed to be outside the scope of the contract. Upon review, the Supreme Court found that the subcontract addressed the subject matter of Axenics' unjust enrichment claim. The Court reversed the trial court's decision finding Turner liable to Axenics on its theory of unjust enrichment. Furthermore, the Court found no evidence that Stryker accepted a benefit that would be unconscionable to retain. Therefore the Court held that the trial court erred in allowing Axenics to recover against Stryker under a theory of unjust enrichment. The Court found that an internal memorandum was admitted into evidence in error; the trial court erred in relying upon it in assessing damages. The Court affirmed the trial court's decision with respect to Axenics' CPA claims. The case was ultimately affirmed in part, vacated in part, and remanded for further proceedings. View "Axenics, Inc. v. Turner Construction Co." on Justia Law

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Plaintiff Phaneuf Funeral Home appealed a superior court order that granted motions for summary judgment in favor of Defendants Little Giant Pump Company, Boyer Interior Design, Leviton Manufacturing Company and The Elegant Earth, Inc. Phaneuf hired Boyer to do interior design and light renovation work in the basement and adjacent hallway of the funeral home. In the hallway, Boyer installed a wall-mounted water fountain that it purchased from Elegant, an Alabama-based household goods retailer. Defendant Leviton supplied the fountain’s power cord to Little Giant, which manufactured the fountain. A fire broke out at the funeral home. Alleging that the water fountain’s defective pump and power cord caused the fire, Phaneuf brought negligence and strict product liability claims against each defendant, although it later withdrew its negligence claim against Boyer. Each defendant moved for summary judgment, arguing that Phaneuf’s claims were time-barred by RSA 508:4-b, I (2010), the statute of repose for “Damages From Construction.” The superior court agreed, and granted each motion. Upon review of the facts in the superior court record, the Supreme Court affirmed the lower court's grant of summary judgment as to Boyer, but reversed as to the remaining defendants. The case was remanded for further proceedings. View "Phaneuf Funeral Home v. Little Giant Pump Co." on Justia Law

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Plaintiff Josephine Lamprey appealed a superior court order that dismissed her against Defendants, Britton Construction, Inc. (Britton), DeStefano Architects, PLLC f/k/a Lisa B. DeStefano (DeStefano) and Dave Sherwood, pursuant to the statutes of limitations and repose. Plaintiff hired the defendants to design and build her home. DeStefano was the architect; Britton was the general contractor; and Sherwood was the mason who installed the home’s extensive stonework, including a stone veneer, terrace and stone chimneys. Plaintiff began living in the house in November 2001, but never obtained a certificate of occupancy. Within one year, water damage appeared on the wood floors. In 2006, Plaintiff hired Sherwood to repair loose stones on her terrace. In 2010, when Plaintiff replaced her stone terrace with granite, the mason in charge of the replacement noticed problems with the home’s stonework requiring significant repairs. As a result, Plaintiff sued the defendants, alleging negligence and breaches of warranty in her home’s construction. Britton requested dismissal pursuant to the statute of limitations for personal actions. Sherwood moved to dismiss, arguing that the construction statute of repose also barred Plaintiff’s claims. Plaintiff responded by arguing, among other things, that the statutes should be tolled because Sherwood had fraudulently concealed her home’s masonry problems. Upon review, the Supreme Court affirmed in part, and reversed in part. The trial court properly dismissed all claims against Destefano. Although the trial court properly dismissed the claims against Britton and Sherwood initially, "it unsustainably exercised its discretion by not permitting Plaintiff to amend her writ to add fraudulent concealment allegations related to the bent masonry ties that concealed defects in her home’s stone veneer. Plaintiff’s amended claims against Britton and Sherwood related to the stone veneer were allowed. The Court remanded the case for further proceedings. View "Lamprey v. Britton Construction, Inc." on Justia Law

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Defendants Scott and Christina Lees appealed a trial court decision that found in favor of Plaintiff Stephen Wyle on his claim of negligent misrepresentation. In 2002, Defendants purchased a two-unit apartment building. Defendants wished to expand the building, and approached a contractor to add a third apartment to the back of the property. Conditional approval for the site plan was granted in November 2003 and final approval was obtained in January 2004. However, Defendants did not obtain the proper permits prior to building or occupying the unit. As a result, the town's building inspector never inspected the unit. The Lees again hired the contractor both to complete a second addition to the property. Defendants again failed to secure the necessary building permits. After the completion of construction, town officials visited the property a number of times in 2006 and 2007. The town informed Defendants that "[s]ave for acceptable field changes[,] the site plan requirements have been satisfied." Defendants listed the property for sale in 2007. After entering into the agreement, Plaintiff had a comprehensive home inspection performed and sent a list of specific concerns regarding the property to Defendants. The concerns were either remedied by the Defendants or waived by Plaintiff prior to closing. Approximately six weeks after closing, the entire property was inspected by the town building inspector and fire chief which revealed numerous building and life safety code violations. Plaintiff was ordered not to occupy the unit until he corrected the violations and made the site compliant with site plan regulations. After correcting the violations, Plaintiff then brought a single claim against Defendants for negligent misrepresentation. Following a two-day bench trial, the trial court issued an order awarding damages to the Plaintiff. Upon review of the trial court record, the Supreme Court found that the evidence at trial established that Defendants negligently misrepresented that the premises were licensed for immediate occupancy and that they had obtained all the necessary permits. Accordingly, the Court found that the trial record supported the decision in favor of Plaintiff, and the grant of damages. View "Wyle v. Lees" on Justia Law