Case Watch: Upcoming Virginia Supreme Court Opinions

Posted on May 19, 2010 by Heidi Meinzer

Here is a new sampling of cases in which the Virginia Supreme Court has recently granted appeals.

In April, the Court granted the petition for appeal in Studio Center Corporation v. WKW Construction, LLC, Record No. 092257, challenging the ruling of Judge Shockley from the Circuit Court of the City of Virginia Beach. Studio Center is contesting Judge Shockley’s holding that Virginia Code Section 54.1-1115(C) applied when the unlicensed contractor admitted it knew Virginia law required a license, but did not realize that it could not use someone else’s license. This case should give us some much needed guidance on Section 54.1-1115(C)’s requirement of “good faith” and “actual knowledge.”

What “Case Watch” would be complete without an appeal involving one of my favorite topics – BPOL tax! In March, the Court accepted the petition for appeal in Ford Motor Credit Company v. Chesterfield County, Record No. 092158. This case will delve into, among other issues, when a tax payer can take a deduction for out-of-state gross receipts under Virginia Code Section 58.1-3732(B)(2), and when it is appropriate to use the default apportionment method in Virginia Code Section 58.1-3703.1(A)(3)(b) to measure the tax payer's gross receipts.

In January, the Court also granted the petition for appeal in AMEC Civil, LLC v. Commonwealth of Virginia, et al., Record No. 091662. AMEC Civil designated no less than twenty-two assignments of error, with the Commonwealth designating seven assignments of cross-error. Much of the debate revolves around whether AMEC was required to give VDOT written notice of its claims at the “beginning of the work,” or whether AMEC could have given notice at the “time of the occurrence” under Virginia Code Section 33.1-386, whether that notice requirement could be satisfied by VDOT’s actual notice, and whether VDOT must show prejudice by any delay in providing notice. Some of the other issues involve whether sustained elevated lake levels constituted a differing site condition, and whether VDOT had a reciprocal duty to provide AMEC notice of that condition under the contract.

As always, stay posted!
 

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DC Contractors and Construction Managers License

Posted on October 19, 2009 by Timothy R. Hughes

A recent reminder e-mail from ABC-Metro Washington highlighted that the licensing regulations for the District of Columbia have changed dramatically.  Traditionally, the District of Columbia only required that home improvement contractors have a license.  That has changed.  The Department of Consumer and Regulatory Affairs now requires that general contractors and construction managers have licenses as well.  The District has imposed a series of classes of licenses that each cap the maximum value of a single project until Class A is reached which has no cap.  Each class has varying insurance requirements.

The new requirements apply to not just residential, but all commercial, industrial, governmental and other jobs.  The imposition of license requirements on construction managers is certainly of note.  We have heard of regulatory bodies taking the view that owner's representatives who are not actually in the contractual food chain and not self-performing work did not need a license.  The District has eliminated this argument.

Those performing work in the District absolutely need to take this regulatory framework seriously.  The law in the District of Columbia is notoriously harsh on unlicensed contractors and basically holds that any contract entered into by an unlicensed contractor where the contractor receives "advance payments" is void and unenforceable.  "Advance payments" are described as any payments before completion of the job. 

In holding that the contracts are void, this means that an owner can accept the value of the work, have a perfectly performed job, refuse to pay, and the contractor has no remedy.  Wait ... it gets worse ... the owner actually has a legal right to compel disgorgement of all funds paid to the unlicensed contractor!  If you are even thinking about doing work in the District, do yourself a favor and get the license.

Image by Laura Padgett

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