You obtained a judgment against your construction contractor, how do you collect?

September 30, 2014 on 8:51 am | In Construction litigation, General Interest, John Tarley, State & Federal Litigation | No Comments

Originally posted 2010-11-10 10:10:23. Republished by Blog Post Promoter

Sometimes your dispute with your contractor goes all the way to court and you obtain a judgment. However, sometimes the contractor does not have the ability to pay the judgment, so financially, you are out-of-pocket your judgment damages plus your attorneys’ fees. You may have one last alternative to recover at least a portion of your losses through the Virginia Contractor Transaction Recovery Fund (the “Recovery Fund”).

Williamsburg Virginia Business Lawyers

Williamsburg Courthouse

 

 

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When is a “Contract” not a Contract?

September 30, 2014 on 8:51 am | In Business Planning, Construction litigation, General Interest, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

Originally posted 2012-02-21 09:00:58. Republished by Blog Post Promoter

We know that in Virginia, the parties to a contract are bound to the terms of that contract. We also know that Virginia courts look to the terms of that contract to determine each party’s rights and obligations. But what is a “contract?” This blog post looks at a recent Virginia Supreme Court case that gives a little guidance to answer that question.

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

September 30, 2014 on 8:51 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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Part 2 of The Rule of Caveat Emptor in the Sale of Real Estate vs. a Seller’s Duty to Disclose

September 30, 2014 on 8:51 am | In Construction litigation, General Interest, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | No Comments

Originally posted 2012-04-16 08:22:32. Republished by Blog Post Promoter

We wrote earlier about a Charlottesville case in which the court analyzed the duty to disclose for a seller of residential real estate. Although Virginia follows the general rule of caveat emptorthe court ruled that the seller, who was also a licensed real estate agent, may have violated a duty to disclose material adverse facts.

The purchasers alleged two other counts, alleging that the seller failed “to disclose the adjacent drain problems and history of flooding, constituting both fraudulent misrepresentation and constructive fraud.” The court dismissed those claims while providing a nice, succinct history of the law of fraud in the sale of a home. This blog post reviews the general rules of fraudulent misrepresentations in residential real estate sales.

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Do the Virginia Rules of Evidence change settlement negotiations and mediations?

June 23, 2014 on 11:32 am | In Construction litigation, HOA litigation, Mediation, Real Estate Litigation | No Comments

Originally posted 2012-07-18 08:00:46. Republished by Blog Post Promoter

Virginia’s new codified Rules of Evidence became effective on July 1, 2012. In an article in Virginia Lawyers Weekly, five of the rules were highlighted. One of those highlighted rules was Rule 2:408, “Compromise and Offers to Compromise.” The terms of this rule differ from the terms of the Federal Rule of Evidence 408, but those differences will not be explored in this post. Instead, this blog post will review Virginia Rule of Evidence 2:408, and its possible implications for settlement discussions and mediation.

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The Rule of Caveat Emptor in the Sale of Real Estate vs. a Seller’s Duty to Disclose

June 23, 2014 on 11:32 am | In Construction litigation, John Tarley, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation | 2 Comments

Originally posted 2012-03-20 20:00:17. Republished by Blog Post Promoter

Simply stated, caveat emptor means “let the buyer take care,” or even more plainly stated: “Buyer beware.” In real estate matters, buyers are warned that they are to “exercise ordinary care in inspecting the condition of property.” Therefore, buyers are generally urged to obtain a home inspection and take such other care prior to closing on their real estate purchase. Otherwise, the buyers may not have any relief if they find adverse conditions after taking possession.

A case arising out of Charlottesville highlights the obligations of the buyers and the sellers in the purchase of a home. In that case, the seller of the home was also a licensed real estate agent, which added another complication regarding the duty to disclose. This blog posts analyzes that court decision, which offers warnings to buyers and sellers of real estate, as well as to licensed real estate agents.

 

 

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How to avoid Real Estate Boundary Line Disputes

June 23, 2014 on 11:31 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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Update on using work email – American Bar Association says lawyers must caution clients of risks

June 23, 2014 on 11:31 am | In Construction litigation, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

Originally posted 2011-09-08 08:45:06. Republished by Blog Post Promoter

We continually warn about the use of work email accounts to correspond with your attorney:

The American Bar Association has now opined that lawyers should “warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.” Although the ABA’s opinion is not binding upon any state regulatory bar association, it is likely that state bar associations, like the Virginia State Bar, will review this opinion with interest.

Williamsburg Virginia Business Lawyers

Client Email

Most of our communications are not private, even though we think they are. Work emails are not secure. Regardless of whether lawyers are required or suggested to warn clients, it is not a good idea to use your work email account to email your attorney.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

jt photo 150x150 Using a company computer to email your attorney may be a bad idea

 

 

 

 

 

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One important tip for your construction project – Change Orders

June 23, 2014 on 11:31 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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In litigation, you can’t always get what you want (especially if you don’t ask)

June 23, 2014 on 11:31 am | In Construction litigation, Contributors, General Interest, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

Originally posted 2011-06-08 09:00:26. Republished by Blog Post Promoter

It’s a fundamental rule in Virginia that the Plaintiff (the person filing a lawsuit) can only recover the relief requested in the Complaint. In a recent unpublished decision, the Virginia Supreme Court reaffirmed the requirement that a party can only get relief if they ask for it.

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