Tag Archives: construction dispute

COMPETENT, SUBSTANTIAL EVIDENCE CARRIES DAY IN BENCH TRIAL

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A number of construction disputes, if tried, are tried through a bench trial meaning the judge is serving in the role of the jury in the construction trial. In a bench trial, two points are important.  First, “the factual findings of the judge are entitled to the weight of a jury verdict.” Q.G.S. Development, Inc. v. National Lining Systems, Inc., 2024 WL 357984 (Fla. 3d DCA 2024) (internal quotation and citation omitted). Second, “[t]he appellate court is only authorized to reverse if such findings are not supported by competent, substantial evidence.” Id. These two points need to be appreciated when participating in any construction dispute that will be resolved through a bench trial.

A recent construction dispute highlights these two points. In Q.G.S. Development, a contractor was hired to refurbish a golf course which included constructing a lake.  The contractor was going to construct the lake, prepare the subgrade, perform dewatering, and it hired a subcontractor to install a reservoir liner at the bottom of the lake.

The subcontractor expressed concerns regarding the site conditions.  Nevertheless, it installed the reservoir liner. However, after it submitted its final invoice to the contractor, portions of the liner began to lift. Before the subcontractor could provide remediation, an employee of the contractor cut the liner.  The subcontractor implemented repairs to the liner but the repairs didn’t work. A subsequent survey revealed leaks in the liner. The lake was drained and the subcontractor performed the repairs to the liner.  The subcontractor submitted invoices for the repairs and then sued the general contractor to collect its final payment along with its repair invoices. The case proceeded to a bench trial. After the bench trial, the judge entered judgment in favor of the subcontractor on its unpaid invoices based on its interpretation of the facts presented in evidence.

The contractor appealed arguing the judge got the facts wrong. The contractor lost the appeal.  Here is why – there was competent, substantial evidence supporting the trial court’s findings in favor of the subcontractor. The appellate court’s scope of review of a bench trial “does not entail examining evidence that potentially supports a different result. Instead, we must only determine whether the findings of the trial court are supported by competent, substantial evidence.” Q.G.S. Development, supra, at *2.  Thus, the “appellate court should interpret the record and all reasonable inferences and deductions capable of being drawn therefrom in the light most favor to sustain [the trial court’s] conclusions.”  Id. (internal citation and quotation omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

THE CREDIBILITY OF YOUR EXPERT (INCLUDING YOUR DELAY EXPERT) MATTERS IN CONSTRUCTION DISPUTES

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Here is a quote from a judge in an order after the bench trial of a complex construction dispute between a prime contractor and subcontractor on a federal project:

The evidence received in this case demonstrates the dynamic nature of complicated construction projects. At every step, the details matter, and coordination and cooperation among the companies tasked with performing the job is essential. Thankfully, as even this case shows, most disagreements that arise as projects evolve are handled during construction, far away from a courthouse, by the professionals who know best how to achieve the ultimate goal of a completed project.

U.S. f/u/b/o McKenney’s, Inc. v. Leebcor Services, LLC, 2022 WL 3549980, *1 (E.D. Va. 2022).

This is a true statement.  A statement that parties should remember as they navigate the nuances of a complicated construction project and dispute.

The facts of the case, however, would hardly be construed as a win for either party. Something else for parties to consider as they navigate the nuances of a complicated construction project and dispute.

While there were many components in dispute, one component is worthy of discussion.  That is competing delay claims between the subcontractor and prime contractor.  The prime contractor claimed the subcontractor delayed the critical path.  The subcontractor claimed the prime contractor delayed the critical path.  Both parties had experts supporting their conflicting delay theories.  The question became which expert is more persuasive? Stated differently, which expert is the most credible? Perhaps neither as neither party recovered delay damages against the other.

The subcontractor’s delay expert did not appear to assign much blame to the subcontractor.  The court did not find this to be credible because the evidence demonstrated the subcontractor’s “own shortcomings consistently delayed its work and, in turn, Project completion.”  Leebcor Services, supra, at *25.  The court understood that the subcontractor needed to prove that but for the prime contractor, the subcontractor would not have completed its work late. Yet, evidence demonstrated there was deficient and untimely work performed by the subcontractor. “Because [subcontractor] failed to disentangle its evidence of alleged [prime contractor]-caused delay from delay caused by its own shortcomings, it failed to demonstrate that [prime contractor] was required under the Subcontract to adjust its fixed-price to account for [prime contractor]-caused delay.”  Leebcor Services, supra, at *26.

The court found the prime contractor’s delay expert, while maybe more credible in certain respects, was not more convincing.  For instance, during a period of time, the court found that while the subcontractor may have been behind schedule, “[prime contractor] has failed to demonstrate by a preponderance of evidence that delays to the Project arising during this period are attributable to [subcontractor’s] failure to timely complete [the scheduled activity].  This is because the court concludes that other activities outside of [subcontractor’s] scope of work were delaying the completion of successor activities.”  Leebcor Services, supra, at *28.  In another instance, the court found that “concurrent issues within [prime contractor’s] control also delayed them, and no evidence was offered that would permit the court to disentangle [subcontractor’s] deficiencies from those attributable to [prime contractor].”  Id. at *29.

Remember, many construction disputes require expert witnesses including delay experts.  The expert needs to carry the day on an issue.  To do this, the expert needs to be credible and persuasive.  This case demonstrates why this should not be overstated and why, even with experts, a trier of fact may still find that neither carry the day.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.