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Construction & Real Estate Development Litigation



We minimize risk and maximize recovery in the construction and real estate industries through efficient and value-driven conflict resolution so businesses can stay focused on development.

Our approach

Construction and real estate development disputes are on the rise.

These are mostly due to shrinking financial resources for new and existing projects. Our clients benefit from our experience in construction-related disputes, zoning and land use, all aspects of real estate development and real property workout.

We become a part of the communities where we maintain offices and get involved in the nuances of the construction and real estate industries there. As a result, we can offer services that reflect the efficiencies of a large firm combined with the knowledge gained from participating in diverse markets.

Our attorneys have handled cases in every forum where real estate and construction challenges arise. We handle middle-market projects as well as large projects—bringing the same value-added approaches to all projects regardless of size.

Who we work with

  • Owners
  • Developers
  • Manufacturers
  • General Contractors
  • Subcontractors
  • Construction managers
  • Architects/engineers

Representative Experience

  • Defended a utility vegetation management company and its affiliates, as contractors to major public utility in California, for liability in cases related to wildfires. Lawsuits by individuals, businesses, governmental entities and insurance companies seeking subrogation have been coordinated before a single judge. Two putative class actions were denied certification. Many of the claims have been resolved through confidential settlements.
  • Defended a utility vegetation management company, as a contractor to a major public utility in California, for liability for wildfires. Claims were brought by the United States Forest Service and the California Department of Forestry and Fire Protection. All claims have been resolved through approved compromises.
  • Represented a California-based construction company against claims brought by a subcontractor on a public works project who had been terminated for cause. The subcontractor claims included breach of contract, quantum meruit, prompt payment law violations and an action on payment bond. After the subcontractor spent three weeks presenting its case at trial (including a mid-trial motion to amend its complaint), we filed a motion for judgment. The court granted our motion and dismissed the case in its entirety.
  • Represented a high-end jewelry company against the engineering firm that designed the wastewater treatment system at its new state-of-the-art jewelry manufacturing facility in order to recover costs incurred as a result of the defective wastewater treatment system. Successfully defeated motion for summary judgment brought by the defendant seeking to bar recovery beyond the contractual limitation, which resulted in the settlement of this lawsuit on favorable terms.
  • Represented a major state university in connection with disputes arising out of the construction of a $12 million telecommunication system campus upgrade. Defended against $8 million plus in claims by contractor for alleged extra work, alleged wrongful termination for cause and for illegal design. Prosecuted counterclaim for $6 million plus for excess completion costs by follow-on contractors and liquidated damages for delays. Case resolved successfully through mediation.
  • Represented a real estate developer and an owner of a shopping mall against engineer and builder for negligent design and construction of a large multimillion dollar shopping mall. Case settled after completion of discovery, including disclosure and discovery of experts.
  • Represented a real estate investment services company in a breach of contract and fraud dispute between the owner and the contractor in connection with a $20 million-plus affordable housing project. We obtained summary judgment on the client’s behalf against the contractor and won an award of attorney’s fees as part of the judgment. The contractor appealed the court’s decision and the appeals court upheld the judgment and award of attorney’s fees in our client’s favor.
  • Represented a secured creditor that was a factor of a construction company in a matter before the U.S. Bankruptcy Court. Through an adversary proceeding against the owner and general contractor of a project that failed to pay the debtor company thereby forcing the debtor into bankruptcy, we recovered over $900,000, representing the full amount of the collateral, plus all factor fees and a significant portion of the client’s attorneys’ fees.
  • Represented an assisted living facility in a dispute with a general contractor arising from the contractor deviating from the guaranteed maximum price, which had increased due to unanticipated defects and changes of condition. After paper discovery was completed, this matter settled on terms favorable to our client.
  • Represented an energy services manufacturer in a high-profile contractual dispute concerning a $32 million energy performance contract involving 40 municipal and school buildings in Massachusetts. The dispute, which involved hundreds of punch list items, proceeded to arbitration. This case settled on favorable terms for our client.
  • Represented an instrumentality of the District of Columbia in a case involving a constitutional challenge to the public/private financing of a commercial real estate development. In a case of first impression in the District of Columbia, the Superior Court of D.C. ruled that the organization’s planned hotel construction could go forward as planned.
  • Represented one of the largest real estate developers in Washington, D.C. in a “bet-the-company” dispute over real estate located at the main entrance to the new Washington Nationals Baseball Stadium in Washington, D.C. After lengthy hearings, the U.S. District Court for the District of Columbia granted a preliminary injunction preventing the local transit authority from selling its property to a competing developer.
  • Represented the general contractor responsible for the construction of the Woodrow Wilson Bridge over the Potomac River in the Washington, D.C., area in high profile litigation with the entity that supplied structural steel for the work. The project involved the construction of the largest bascule or drawbridge in the world. The matter was litigated successfully to verdict in state court and in a parallel arbitration before the American Arbitration Association.
  • Represented the owner of a waterfront museum in a dispute with its general contractor and subcontractors after the museum’s renovations were completed for an amount exceeding the guaranteed maximum price. Due to the necessary purchase of new materials to replace improperly sized materials that would have compromised the structural integrity of the ship had they been used, the project went over cost by over $250,000. This matter settled on terms favorable to our client.
  • Represented the owner of an alpaca farm in a right-of-way dispute concerning the only reliable access road to the farm. After a five-day trial, the Rhode Island Superior Court rendered a bench decision that was a complete victory for the alpaca farm and literally “saved the farm.”
  • Representing a general contractor in a dispute with the Navy and subcontractors regarding payments for extra work performed at a U.S. Naval Base. The case involves Requests for Equitable Adjustment submitted to the Navy due to differing site conditions at the base.
  • Representing an installer of veneer paneling in a complex multiparty dispute with the owner, general contractor, architect, subcontractors and suppliers involved in the construction of a new hospital building. The building’s plans specified use of imported eucalyptus wood paneling, which began to discolor after the project was completed. The hospital requested replacement paneling, which could cost up to $4 million, leading to a dispute regarding causation of the issues with the original work.
  • Representing an international beverage alcohol producer and distributor in connection with a dispute with a general contractor arising out of $15 million-plus solar projects located in three of their wineries in Northern California. This is currently one of the largest solar projects of this nature in California.
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Court orders Pittsford board to approve controversial Westport Crossing

Democrat & Chronicle | September 14, 2018

Rochester Complex Commercial Disputes partner Chris Thomas is quoted in this article for his representation of a developer in its efforts to build a luxury apartment complex in Pittsford, NY.

How a South Boston real estate fight could delay new MBTA Red Line cars

The Boston Globe | July 02, 2018

Providence Complex Commercial Disputes partner Armando Batastini is quoted in this article for his representation of a Boston-area family who has sued to stop the planned testing of subway cars on a parcel of land it owns.

Legal Risks of Using Automated Drones in Construction

Engineering News-Record (ENR) | April 27, 2017

San Francisco commercial litigation partner Matt Richards and associate Aldo Ibarra contributed this article about legal risks construction companies should consider as automated drone technology becomes more widely used in the industry. Click here to read the full article.

Contacts

Jeffrey S. Brenner

Partner
Leader, Construction & Real Estate Litigation

jbrenner@nixonpeabody.com

Phone: 401-454-1042

Vernon W. Johnson, III

Partner
Deputy Leader, Construction & Real Estate Litigation

vjohnson@nixonpeabody.com

Phone: 202-585-8401

View All Contacts
  • Ranked as National Tier One in U.S. News/Best Lawyers “Best Law Firms” in Real Estate Law and Commercial Litigation. Received metropolitan honors in Real Estate Law and Commercial Litigation in Boston and Rochester.
  • BTI Litigation Outlook 2013
    • “Most Feared Law Firm”—Honor Roll
    • Strong Performance—Commercial Litigation, IP Litigation, Product Liability Litigation
  • Chambers USA/Global
  • Legal 500
  • Law 360—Employment 100
  • Benchmark: Litigation/Appellate
  • Best Lawyers “Lawyers of the Year” 2014
    • Scott O’Connell, Boston Litigation—Banking & Finance
    • Carolyn G. Nussbaum, Rochester—NY Litigation—Securities
    • Susan C. Roney, Buffalo—Civil Rights Law
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