Construction Law

Plaintiff sued his neighbor (whose building is 6-8" from Plaintiff's home) and the neighbor's roofing contractor over damage to Plaintiff's roof. Contractor attempted to place a new roof on top of neighbor's existing roof and secure it to Plaintiff's roof, without Plaintiff's consent or knowledge, and caused damage to Plaintiff's roof. Plaintiff sufficiently pleaded vicarious and in-concert liability against the neighbor, based on roofing contractor's actions. Lacking any personal knowledge of any oral or written interactions between Defendant's, Plaintiff could not be any more specific than to allege that neighbor had the right to approve, direct, and control the manner of the contractor's work. Plaintiff should not, at this stage, be required to lay out the evidence supporting these ultimate facts. Complaint adequately alleges that contractor was not an independent contractor, but acted specifically at neighbor's direction in altering Plaintiff's roof and was thus neighbor's agent at least to that extent. Complaint alleges "control" as to direction to attach the new rubber roof to Plaintiff's roof, and thus adequately pleaded claim for vicarious liability. Complaint adequately alleges that neighbor "substantially encouraged" contractor to drill holes in Plaintiff's roof as part of a plan to connnect over its roof and attach it to Plaintiff's roof, and thus sufficiently alleged in-concert liability. (McBRIDE and BURKE, concurring.)

Dispute over alleged latent defects in construction of the common elements of a condominium building, in the design, materials, and construction of the building's plumbing system. Purchaser of a newly constructed condominium unit may not pursue a claim for breach of implied warranty of habitability against a general contractor where there was no privity of contract between the general contractor and the purchaser. (GORDON and LAMPKIN, concurring.)

Defendant LLC borrowed $17 million from  bank to construct a condominium development. LLC defaulted and bank sued to foreclose. Plaintiff purchased the loan from bank and entered settlement agreement with LLC with a contingent precedent requiring all units be sold before Plaintiff could sue LLC on the loan and owner on his guaranties. Many years later, Plaintiff filed complaint alleging that LLC had breached construction note and that its owner had defaulted on his payment and completion guaranties. After bench trial, court entered judgment for Plaintiff and awarded $17.031 million in damages. Court's decision was not against manifest weight of evidence. Court properly exercised its discretion by allowing Plaintiff to admit disbursement statement into evidence, as it was relevant to the key issue and was available to both parties. Court properly held LLC and owner breach their obligations under note and guaranties and then, to calculate damages, permitted Plaintiff to present witnesses and evidence on terms of settlement agreement. Court's finding that testimony and evidence showed that all expenses of LLC were paid pursuant to agreement or not challenged by owner was not against manifest weight of evidence. (WALKER and COGHLAN, concurring.)

Court properly granted Defendant's motion to dismiss Plaintiff's mechanics lien claim and ordered Plaintiff to release its lien pursuant to section 35 of Mechanics Lien Act. Defendant's mortgage lender and bank which had a security interest in leases and rents from property were necessary parties under section 11 of the Act. Both had recorded their interests before Plaintiff filed its complaint. Plaintiff failed to add these necessary parties as defendants within 30 days of Defendant's demand to enforce the lien resulted in forfeiture of its lien. The 30-day time limit, in section 34 of the Act, applies where a property owner issues a written demand to enforce the lien, and is the applicable time period rather than the 2-year time limit of section 9 of the Act.  (CONNORS and ODEN JOHNSON, concurring.)

Court erred in determining that Mechanics Lien Act required, for perfection of Plaintiff's lien, that Plaintiff wait 10 days after sending notice of its claim of lien before recording the claim. Plaintiff complied with section 28 of the Act by filing suit to enforce its lien after 10 days had expired, from the time it served notice of its claim of lien. Section 28 of the Act allowed Plaintiff, 10 days after notice, to either file its claim of lien or file suit to enforce the lien. Section 24 of the Act does not mandate a specific form for the notice. Plaintiff's notice met the requirements of section 24, as it provided the parties' names, property description, work performed, and amount due, and served it on owner by certified mail, and was thus valid. (JORGENSEN and BRIDGES, concurring.)

(Court opinion corrected 7/30/20.) Court entered order subordinating the mechanic's liens of 3 mechanic's lienholders to $12 million in new debt, to be issued through receiver certificates, for improvements to secure a 10-year lease with GSA. Pursuant to Mechanics Lien Act, court had equitable power to issue receiver certificates and prioritize them over the mechanic's liens. Court abused its discretion where it concluded, without sufficient evidence, that making $12 million in receiver certificates a first lien, vis-a-vis the mechanic's liens, was in the lienholders' best interests or doing so was apparently necessary to preserve the property, over the objection of certain lienholders. No evidence was presented as to value of the building with the GSA as a tenant, or as to the current value of the building, and no appraisals, estimates, or expert testimony was entered into evidence. (BIRKETT and ZENOFF, concurring.)

Plaintiff contracted with Defendant to build a new home, and alleges that Defendant did not complete the project and that there were deficiencies in the portions it did complete. Court entered summary judgment for bank and for inspector/appraiser. Plaintiff filed several postjudgment motions more than 30 days after entry of judgments. Court properly found that it lacked jurisdiction to rule on any pending postjudgment motions. Order had disposed of all remaining claims as to all remaining parties in the suit, and was thus a final order and immediately appealable. Plaintiff's unexercised right to reinstate or refile her claim against construction company president, and his bankruptcy filing, are not relevant to whether order was final, as Plaintiff had previously removed him from litigation.  As Defendants did not act inconsistently with the order or seek to set it aside, court was not revested with jurisdiction to hear any pending postjudgment motions. (JORGENSEN and HUDSON, concurring.)