constructionattorneyblog

Airport Design team sues Atlanta

According to this article in the Atlanta Business Chronicle:

The dispute between the airport and its design team for an international terminal has escalated to the courts.

The design team, a consortium that includes Leo A. Daly Co., Khafra Engineering Inc., Anthony C. Baker Architects and Planners PC, and Browder & LeGuizamon, filed a suit Tuesday, one day after receiving termination notice from the airport General Manager Ben DeCosta.

They are suing the city of Atlanta for breach of contract and punitive damages, and are asking for $10 million in payments and an additional $50 million for damaging their reputation.

Copyright -- World Trade Center

According to an article in the New York Times, August 11, 2005, a copyright suit against two of the designers of the new World Trade Center, Skidmore Owings and Merrill and David Childs, will be allowed to continue.

A federal judge ruled yesterday that there were enough similarities between David M. Childs's 2003 design for the Freedom Tower at the World Trade Center site and a 1999 student architectural project that a lawsuit against Mr. Childs for copyright violation could proceed.

The student, Thomas Shine, now an architect in Brookline, Mass., sued Mr. Childs and his firm, Skidmore, Owings & Merrill, last year. He charged that they had copied Freedom Tower from Olympic Tower, Mr. Shine's project at the Yale School of Architecture, which Mr. Childs saw and admired as a jurist critiquing students' work. Skidmore denied the allegation. And the resemblance.

Judge Michael B. Mukasey, chief judge of the Federal District Court in Manhattan, said in his ruling yesterday that some lay observers "might find that the Freedom Tower's twisting shape and undulating diamond-shaped facade make it substantially similar to Olympic Tower, and therefore an improper appropriation" of copyrighted artistic expression.

This will be an interesting case to watch.

Here is a press release by the plaintiff's firm.

California: No contractual jury waiver

The California Supreme Court, on August 4, 2005, in Grafton Partners v. Pricewaterhousecoopers, held that a waiver of a right to a jury trial contained in a contract was not enforceable. The California Constitution states:

Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.

The applicable statute lists 6 grounds for waiving a jury trial, none of them including a pre-dispute contractual provision. An attempted analogy to agreements to arbitrate failed because arbitration is permitted by statute, and because an agreement to arbitrate means that the parties are not submitting their controversey to a court of law in the first instance. The court held that, "unless the legislature prescrives a jury waiver method, we cannot enforce it."

The court also reviewed the laws of other jurisdictions, noting that New York enforces predispute jury waivers and that the applicable California statutes were modeled on New York law, but declined to follow New York.

The concurring opinion noted that only one other supreme court -- Georgia -- would not allow predispute waivers of a right to a jury.

These types of waivers are usually seen in contracts where there is a disparity in bargaining positions. Often, these are take-it-or-leave-it propositions. It will be interesting if courts in other states continue to side with the big corporations or help the little guy by adopting this California approach.

Design Delegation

The July 22, 2005 Business Review has an interesting article on design delegation by architects.

Supreme Court Nominee's Construction Decisions

Thanks to the Construction Owners and Builders blog for a review of three cases authored by Supreme Court nominee John Roberts.

Supreme Court rules that property can be taken for development

On June 23, 2005, the United States Supreme Court, in a 5-4 vote, ruled that a city can take a person's home for a development project aimed at revitalizing a depressed local economy, according to Reuters. More here.

Supreme Court Revisits Prima Paint

On June 20, 2005, the United States Supreme Court agreed to hear the Florida case of Buckeye Check Cashing Inc., v. Cardegna (04-1264).  The Florida Supreme Court's decision in that case will be reviewed in which that court determined that the court, not the arbitrator, must initially determine the validity of an arbitration clause in a contract alleged to be illegal. This is an opportunity to have this issue cleared up, since courts have treated this issue in different ways. If the underlying contract itself is invalid or illegal, then why should an arbitration clause in that contract be upheld?

Arbitrator's Change of Award Upheld

The Colorado Supreme Court upheld an arbitrator's changed award as a clarification in Sooper Credit Union v. Sholar Group Architects (June 13, 2005). The arbitrator held for the petitioner, but the award was internally inconsistent. When the award was issued, the petitioner asked the court to order the arbitrator to correct the award, and the respondent asked for confirmation. The court sent the matter back to the arbitrator who corrected the award. The initial error was not apparent from the face of the award. Initially, the arbitrator had awarded the Respondent some $200,000. The corrected award was for $223,000 in favor of the Petitioner, a swing of over $400,000.  The trial court confirmed the award. Respondent appealed, arguing that the arbitrator exceeded his authority by modifying the initial award and redetermining the merits. The appellate court reversed. The Colorado Supreme Court reversed and reinstated the amended award. An ambiguity need not be apparent on the face of the award, and it is up to the arbitrator to determine if an ambiguity exists. This was not a redetermination of the merits.

Mold White Paper Issued

On June 6, 2005, the Mortgage Bankers Association issued a white paper on mold:

Today, the Mortgage Bankers Association (MBA) releases its Mold White Paper to the public - Mold: Steps Toward Clarity. This document was written by the MBA Commercial Real Estate/Multifamily Finance Board of Governors (COMBOG) Loan Origination Committee's Mold Working Group. The Commercial/Multifamily Mold Working Group is made up of MBA members who are industry experts in commercial real estate finance, property inspections and insurance. The purpose of this White Paper is to provide an educational resource on mold and damp indoor commercial spaces. The paper examines how knowledge in this area has evolved and what may be done now to effectively mitigate mold and dampness issues.

"In an attempt to eliminate the 'mis-information' that exists with regard to the mold issue, this authoritative reference piece was crafted," explains Don Glitz, vice president, Corporate Risk Manager of GMAC Commercial Holding Corporation and chair of MBA's Commercial/Multifamily Mold Working Group. "It is an all-inclusive guidance document that serves to clarify all facets of the mold issue, so that our industry can make informed decisions based on individual situations, business models and transaction requirements."

The Commercial/Multifamily Mold Working Group took careful steps to fully research, draft and finalize this paper. To that end, the paper was open for a 45 day comment period at which time, key industry experts were asked by the working group to thoroughly review, question and comment on the paper before releasing the final version to the public. The working group went to great lengths to provide a comprehensive document that will serve as a guide and reference tool on this important issue. For commercial lenders and servicers alike, there is no single set of "best practices" in recognizing and coping with mold issues, but awareness of mold and its effects is the first of a series of "smart practices" the industry can embrace.

Because of the rapidity with which this issue is evolving, the Commercial/Multifamily Mold Working Group anticipates the issuance of periodic supplements to this document as significant developments occur.

Copyright Infringement costs $6 Million

This is from an article today in the Deccan Herald:

Real estate mogul Fred C Sands thought he had commissioned the design for a $20 million Bel-Air dream house that would be like no other.

Then two years ago, a couple of architects took a fateful drive down a winding street about seven miles away in Beverly Hills.

At a construction site, one architect remarked on the fine detailing on a pediment piece over a doorway. Inside, the two found striking similarities to the Tuscan-style villa that their boss, William Hablinski, had just spent more than 3,800 hours over a year and a half creating for Sands. 

“This was a jewel box, our jewel box, and somebody ripped it off,” Sands said. “Hablinski promised us this would be one of a kind.”

Outraged on his own and on behalf of his clients, Hablinski filed a lawsuit against the builders and owners of the Beverly Hills property. Referring to the Beverly Hills property as the “copycat house”, the suit alleged copyright and trademark infringement, unfair competition and other complaints.

After a three-week trial in Los Angeles, a six-person jury ruled this month in Hablinski’s favour and awarded him nearly $6 million. The jury found that the defendants conspired with a former Hablinski employee to copy plans for the Sands house and use them to build the Beverly Hills home.

Full story here.