Has your business been paid with a check endorsed as “Payment in Full?”

March 31, 2014 on 10:30 am | In Business Law, John Tarley, State & Federal Litigation | No Comments

Originally posted 2013-03-20 08:52:53. Republished by Blog Post Promoter

Many of us have been paid by a check that includes the written endorsement of “payment in full.” By this endorsement, the maker (writer of the check) intends to settle any dispute once the payee (recipient of the check) deposits the check. The payee worries that by depositing the check, he is waiving any right to demand full payment for the service or supply provided. This blog post addresses Virginia law and each party’s rights with respect to the endorsement of “payment in full.”

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Attorneys’ Fees and Litigation – When fees get awarded to the “Prevailing Party”

March 31, 2014 on 10:30 am | In Common Interest Community, Construction litigation, HOA, HOA litigation, John Tarley, Mediation, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

Originally posted 2012-10-17 07:45:47. Republished by Blog Post Promoter

In litigation matters involving common interest communities (otherwise known as homeowners associations (“HOAs”) or condominium owners associations (“condo associations”)), the issue of awarding attorneys’ fees for prevailing parties ultimately arises. Generally, the HOA’s Governing Documents or the condo association’s Condominium Instruments contain such a provision. Otherwise, attorneys’ fees may be recoverable by statute for HOAs and condo associations.

These attorney fee-shifting provisions, either by contract or statute, are contrary to the typical “American Rule” cases in which each side pays their own attorneys’ fees. Because litigation has become so expensive to pursue, whether to award attorneys’ fees, and the amount of any award, has become separate litigation on its own at the conclusion of cases.

In the recent case of Dewberry & Davis, Inc. v. C3NS, Inc., the Virginia Supreme Court was faced with the issue of “whether the circuit court erred in applying an attorneys’ fees provision of a contract.” We had previously blogged about this case, because in the underlying contract between the parties, Dewberry & Davis, an engineering company, had limited its liability for damages. The trial court had determined the limitation of liability clause was void, pointing to a recent change to Virginia Code § 54.1-411that permitted an engineering company to include a limitation of liability clause. Because the contract predated the code change, the court determined that those changes “demonstrate that the General Assembly fully intended to alter the statute’s intent.”

The case continued to trial, and eventually, upon appeal, to the Virginia Supreme Court. This blog post explains that Supreme Court decision relating to the award of attorneys’ fees.

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One important tip for your construction project – Change Orders

March 31, 2014 on 10:30 am | In Construction litigation, General Interest, John Tarley, State & Federal Litigation | No Comments

Originally posted 2010-11-03 07:12:45. Republished by Blog Post Promoter

The DPOR regulations require Class A Contractors to obtain written change orders “which are signed by both the consumer and the licensee.” This requirement sounds pretty reasonable and easy to maintain, yet the reality is that many contractors fail to fully comply with this provision, leading to possible problems down the road.

 

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Residential construction and mechanic’s liens; how you can protect your mechanic’s lien rights

March 31, 2014 on 10:30 am | In Construction litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

Originally posted 2011-09-06 13:00:30. Republished by Blog Post Promoter

Williamsburg Virginia Business Lawyers

Courtroom

 

With the downturn of the housing industry, we have seen a dramatic increase in the number of construction disputes, especially in residential construction. Owners are battling with the contractors, and subcontractors are trying to get paid by somebody. These cases lead inevitably to litigation.

The property owners and the building contractor should have a written contract. However, the subcontractors sometimes find themselves in a difficult situation, unpaid by an insolvent building contractor. It is usually then that we will receive a call from a subcontractor asking about their mechanic’s lien rights. Unfortunately, it may be too late for that subcontractor to preserve their mechanic’s lien rights because they failed to provide proper notice at the outset of the work performance. This blog post provides a brief overview of the notice requirements for subcontractors to preserve mechanic’s lien rights. Continue reading “Residential construction and mechanic’s liens; how you can protect your mechanic’s lien rights”

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How to avoid Real Estate Boundary Line Disputes

March 31, 2014 on 10:30 am | In Construction litigation, General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2011-03-08 09:04:35. Republished by Blog Post Promoter

Few real estate topics cause more disputes between owners than those involving activities at a common boundary. We have reviewed boundary line disputes involving trees that straddle property lines and fences that encroach upon boundary lines.

A recent Portsmouth case highlights another issue relating to boundary lines.

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Who pays when a tree falls on my property?

March 31, 2014 on 10:30 am | In General Interest, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Unit Owners Association | No Comments

Originally posted 2011-08-30 08:30:18. Republished by Blog Post Promoter

Hurricane Irene left a lot of damage in Virginia. Although the damage was not as great and widespread as caused by Hurricane Isabel, many of us had in excess of ten inches of rain and suffered from many fallen trees. This tree fell in my back yard.

We  previously blogged about issues arising when a neighbor’s vegetation, including trees, encroaches upon our property. In that situation, we can cut the offending vegetation, including roots, back to the common property line. However, if the vegetation is also damaging our property,  the Court can order the complete removal of the offending vegetation and award us compensation for our expenses, including compensation for damages.

After Hurricane Irene, we should visit another question: who pays for damage when my neighbor’s tree falls on my property? Generally speaking, this property law question involves an issue of negligence and insurance. Each situation would require a review of the facts, and a review of your homeowner’s insurance policy, but here is some general guidance:

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HOAs and Mediation: Not always a viable alternative to Litigation

March 31, 2014 on 10:30 am | In Common Interest Community, HOA, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation, Susan B. Tarley, Unit Owners Association | 3 Comments

Originally posted 2012-02-10 20:10:42. Republished by Blog Post Promoter

We have written extensively on the virtues of alternative dispute resolution, specifically mediation, to resolve disputes. Litigation is a time-consuming and expensive undertaking, and in the end, both sides are generally unhappy with the result because of the costs and time incurred.

But although we encourage mediation generally, mediation in HOA litigation is a much more complex and difficult undertaking. In this blog post, we will discuss difficulties with mediating HOA disputes.

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When Raising Money For Investment Purposes From Any Source, BEWARE

March 31, 2014 on 10:30 am | In Business Planning, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

Originally posted 2010-12-27 10:49:33. Republished by Blog Post Promoter

Raising money or obtaining other property for investment purposes from whatever source in Virginia, including from family and friends, implicates state and federal law.

Some may have read about the recent action for fraud filed by Andrew Cuomo, the Attorney General of the State of New York, against Ernst & Young, LLP, one of the largest accounting firms in the United States.  Some, noting that this action was not brought under the Securities Exchange Act of 1934, may have wondered from whence the Attorney General’s authority arose.  Authority arose under the Martin Act, a New York law initially passed in 1921, and amended and codified in 1982 in Article 23-A of the New York General Business Law.

What is important for those in the Commonwealth of Virginia attempting to raise money or obtain other property for investment purposes is that Virginia has similar securities laws.  Virginia’s Securities Act is codified in Title 13.1, Chapter 5, of the Code of Virginia.  As with that of the State of New York, the reach of Virginia’s Securities Act differs from, and is more extensive than, that of the federal securities acts.

Ernst & Young

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Does your Business use Employee Noncompete Agreements?

March 31, 2014 on 10:30 am | In Business Planning, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

Originally posted 2010-08-17 22:37:52. Republished by Blog Post Promoter

Williamsburg Virginia Business Lawyers

Contract

The legal issues related to employee “non-competes” (also known as covenants not to compete or non-competition agreements) are often not well understood by employees subject to them, the companies insisting upon them, or the companies intending to hire persons subject to them.  That may well be especially true in the Commonwealth of Virginia where one frequently hears, “That agreement is so broad it will never be enforced and Virginia doesn’t ‘blue pencil’ these agreements, so no problema.”

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Can an engineering firm limit its liability by contract?

March 31, 2014 on 10:30 am | In Business Planning, John Tarley, State & Federal Litigation | No Comments

Originally posted 2010-10-13 07:34:52. Republished by Blog Post Promoter

 

Maybe not, in certain circumstances. A Fairfax County judge has determined that an engineering firm cannot limit its liability by contract in a case involving a 2008 fee contract. The typical fee agreement for an engineering firm includes some form of “limitation of liability” in which the firm seeks to limit its liability “to the amount of fees paid” to the firm, whether the claim is for breach of contract or warranty, or for negligence. In the case of Dewberry & Davis, Inc. v. C3NS, Inc., the engineering services firm, Dewberry, filed a fee claim against C3NS. C3NS filed a counterclaim for breach of contract. Dewberry had a limitation of liability clause in its fee agreement. It sought summary judgment to prevent C3NS from claiming that the limitation of liability paragraph was void. The Court sided with C3NS.

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