Construction & Real Estate Development Litigation



Our national team provides strategic solutions for efficient conflict resolution to help our clients minimize risk, maximize development opportunities, and strategically plan for the future.

Our approach

We understand that all construction projects require careful planning and strategic decision making. With so many moving pieces, one wrong step could result in a dispute, potential damages, or severe delay.

Bringing together deep experience across practice areas—including litigation, real estate, land use, labor and employment, environmental, and bankruptcy—our team is at the forefront of trends affecting all facets of the real estate and construction industries. Our attorneys assist clients through every phase of their construction and real estate development projects—we provide guidance for every decision, identifying options and alternative solutions to avoid mistakes that could result in costly litigation.

When disputes arise, our experienced construction and real estate litigators have handled all manner of lawsuits, arbitrations, and mediations, including all tiers of federal and state courts, administrative agencies, and contract appeals boards. We have a proven track record of litigating disputes to a successful conclusion when necessary and resolving disputes in the transactional, pre-litigation, or early litigation stages when possible.

Our attorneys have particular strengths handling disputes related to construction and design, zoning and land use, commercial leasing, property damage claims, and all aspects of real estate development and property workout.

From middle-market projects to some of the most prominent infrastructure and commercial developments in the country, regardless of the size, complexity, duration, or location, we provide the same value-added approach to our clients across industries, including:

  • Affordable housing
  • Agriculture
  • Energy
  • Finance
  • Government
  • Health care
  • High-end residential
  • Higher education
  • Hospitality
  • Infrastructure
  • Manufacturing
  • Mixed-use commercial/residential
  • Sports and entertainment

Experience

Affordable housing

  • Obtained summary judgment and awarded attorney’s fees on behalf of a real estate investment services company in a breach of contract and fraud dispute between the investment company and owner versus the contractor of a $20 million+ affordable housing project. The contractor appealed and the appeals court upheld the decision.

Agriculture

  • 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.

Energy

  • Led a six-week, multi-party arbitration to determine financial responsibility for a $60 million+ overrun on the construction of the first utility scale solar project in Minnesota. We defended the project’s engineering, procurement, and construction (EPC) contractor against claims, exceeding $100 million, brought by the project’s owner. In a 150-page decision, the arbitrator placed sole responsibility for the cost overrun on the owner and rejected all other damages arguments. 
  • Represented an international producer and distributor of beverage and alcohol in a dispute with a general contractor arising out of $15 million+ solar projects located at three of their wineries in Northern California. The matter settled on favorable terms for the client.

Finance

  • Represented a secured creditor that was a factor of a construction company in a matter before the U.S. Bankruptcy Court involving a project that forced its debtor company into bankruptcy. Through an adversary proceeding against the project’s owner and general contractor that failed to pay the debtor company, 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 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, the Superior Court of DC ruled that the organization’s planned hotel construction could go forward as planned.

Government

  • Represented 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 involved requests for equitable adjustment submitted to the Navy due to differing site conditions at the base.
  • Represented a general contractor in a dispute with the United States Department of Agriculture regarding the construction of a multipurpose dam in Massachusetts.  The matter involved issues regarding termination for cause versus termination for convenience as well as a claims from subcontractors for equitable adjustment.  We assisted the client in converting the termination for cause to a termination for convenience and achieved the client’s objectives concerning the subcontractor’s equitable adjustment claim.

Health care

  • Settled a matter in favorable terms for an assisted living facility in a dispute with a general contractor who deviated from the guaranteed maximum price due to unanticipated defects and changes of condition.
  • Represented an installer of veneer paneling in a complex dispute with the owner, general contractor, architect, subcontractors, and suppliers involved in the construction of a new hospital building. Once the project completed, the hospital requested replacement paneling (costing up to $3 million), which led to a dispute regarding causation of the flaws in the original work. We successfully resolved matter after a multiple-day mediation.

High-end residential

  • Represented homeowners in a two-week, multi-party AAA construction arbitration arising from construction defects to multiple systems at their $10M San Francisco home. The arbitrator’s final award, in favor of the owners and in the full amount of damages sought, was reduced to a state court judgment and successfully enforced without resort to further litigation.
  • Representing homeowners in a dispute with the general contractor (terminated for cause during the course of the project) and in a related construction defects investigation arising from the construction of a $10M private residence in St. Helena. In addition to managing multiple state court cases—the owners’ petition to compel arbitration in the lead case has been granted and other proceedings are being consolidated—we are negotiating mechanic’s lien extension agreements with numerous parties, assigning subcontracts from the terminated general contractor to the owner, coordinating the ongoing forensic investigation and inspection, and preparing for arbitration.

Higher education

  • Representing multiple major state university systems in claims for failures of the underground mechanical systems at their campuses.
  • Represented a major state university system in claims for breach of contract and negligence against designers, contractors, and suppliers of utility piping at one of its flagship research campuses. The university suffered more than $33M of principal damages arising from the catastrophic failure of the underground utilities distribution piping system. The case settled at mediation and in conjunction with insurance recovery action.
  • Defended a major state university against $8M plus in claims by a contractor alleging extra work, wrongful termination for cause and illegal design arising out of the construction of a $12M telecommunication system campus upgrade. We prosecuted a counterclaim for more than $6M for excess completion costs by follow-on contractors and liquidated damages for delays. The case resolved successfully through mediation.

Hospitality

  • Defending the developer of a San Diego hotel against a suit brought by the current owner that seeks approximately $80M in damages.

Infrastructure

  • Defended a general contractor against breach of contract/accounting claims alleged by a subcontractor on a public works project. We prevailed after phase 1 of the trial, requiring the damages claims be dismissed and that it disgorge all monies received on the entire project. Judgment, including an award of attorney’s fees, has been affirmed on appeal. 
  • Defended a utility vegetation management company and its affiliates, as contractors to a major public utility in California, for liability in cases related to wildfires. Lawsuits by individuals, businesses, governmental entities, and insurance companies seeking subrogation were coordinated before a single judge. Two putative class actions were denied certification. And many of the claims were resolved through confidential settlements. Through approved compromises, we also resolved claims brought by the United States Forest Service and California Department of Forestry and Fire Department.
  • Represented a California-based construction company against claims—including breach of contract, quantum meruit, prompt payment law violations and an action on payment bond—brought by a subcontractor on a public works project terminated for cause. The court granted our motion for judgment on the pleadings and dismissed the case in its entirety.
  • Represented the general contractor responsible for the construction of the Woodrow Wilson Bridge over the Potomac River in Washington, DC, in high profile litigation with the project’s structural steel supplier. The matter was litigated successfully to verdict in state court and in parallel arbitration before the American Arbitration Association.
  • Represented an energy services manufacturer in a high-profile dispute concerning more than 600 punch list items in a $32M energy performance contract involving 40 municipal and school buildings in Massachusetts municipality. We prevailed in arbitration on all aspects of the claims asserted by the client and successfully defended all issues raised by the municipality.

Manufacturing

  • Represented a high-end jewelry company against the engineering firm that designed the wastewater treatment system at its new manufacturing facility, in order to recover costs incurred as a result of the defective system. We successfully defeated the defendant’s motion for summary judgment seeking to bar recovery beyond the contractual limitation, which resulted in settlement of this federal court lawsuit on favorable terms.
  • Represented a plastic film manufacturer against a general contractor’s assertion of a claim for extra costs with respect to a major on-site construction project.  Based upon the favorable contract terms that we originally drafted for our client, we prevailed on all items raised by the contractor.

Mixed-use commercial/residential

  • Handling litigation in California state court with a neighbor who is seeking to halt a portion of our owner/developer client’s $1.6B construction of a 2.2 million square-foot development in downtown San Francisco. Previously drafted the project agreements, including the general contract, the construction management agreement, the demolition contract, the foundation construction agreement, and assorted other contracts. Acting as project counsel and evaluating and negotiating change orders and other contractor claims as needed.
  • Lead construction counsel for owner/developer for a project located on a 4.6-acre property in downtown Los Angeles. The project includes three high-rise towers between 40 and 49 stories—two are residential, one is a mixed-use building with a hotel, 504 condominium units and retails space. Drafting and advising on key project agreements, such as the architecture agreement and the construction management agreement. Also serving as project counsel, and evaluating and negotiating change orders and other contractor claims and disputes as needed.

Sports and entertainment

  • Represented one of the largest real estate developers in Washington, DC, in a “bet-the-company” dispute over real estate located at the main entrance to the new Washington Nationals Baseball Stadium. After lengthy hearings, the U.S. District Court for the District of Columbia granted a preliminary injunction preventing the local transit authority from selling the property to a competing developer.
  • Represented the owner of a waterfront museum in Boston in a dispute with its general contractor and subcontractors after the museum’s renovations exceeded the guaranteed maximum price by over $250,000. This matter settled on terms favorable to our client.

Planning Board to hold special meeting tonight on Wakefield Alzheimer’s facility

The Narragansett Times | August 05, 2019

This article mentions Providence Complex Commercial Disputes partner Jeffrey Brenner, who is representing clients who wish to build an assisted living facility for people with Alzheimer’s in Wakefield, Rhode Island.

What construction attorneys must know about drones

Law360 | February 12, 2019

San Francisco Complex Commercial Disputes partner Aldo Ibarra is quoted in this story about the FAA regulations governing the use of drones on construction sites, and how many builders aren’t aware of the latest rules.

Court orders Pittsford board to approve controversial Westport Crossing

Democrat & Chronicle | September 13, 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 01, 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 26, 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

Anthony Barron

Partner

abarron@nixonpeabody.com

Phone: 415-984-8309

  • Ranked as National Tier One in U.S. News/Best Lawyers 2019 “Best Law Firms” in Real Estate Law. Received metropolitan honors in Real Estate Law in Boston, Rochester, and Washington, DC.
  • 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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