South Carolina Construction Law Blog
South Carolina Construction Law - Discussion of mechanic's liens, delay claims, coverage, and constr

Court Finds Developer not in Contempt for Stormwater Damage to HOA

Ex Parte: Lipscomb v. Stonington Devel., No. 4961 

Respondents/property owners filed suit against a developer for property damage caused by stormwater runoff. The circuit court judge issued an order granting a permanent injunction to the property owners, which enjoined the developer “from discharging sediment-laden stormwater onto [Respondents] property and causing damage thereto.”   Respondents later filed a motion to hold the developer in civil contempt for violation of the order. The circuit court held a hearing to determine if the developer was in contempt.  At the hearing, evidence was presented illustrating efforts the developer had taken to prevent the stormwater runoff, albeit unsuccessfully. The court found the developer in contempt and this appeal followed. 

The court of appeals reversed the order of civil contempt.  “Contempt results from the willful disobedience of a court order, and before a court may find a person in contempt, the record must clearly and specifically reflect the contemptuous conduct . . . . A willful act is one . . . done voluntarily and intentionally with the specific intent to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law.” 

The evidence in this case showed that the developer had taken steps to alleviate the runoff by hiring consultants and workers to monitor the property, and erecting silt fences, rock dams, and hay bales. Although these efforts did not completely stop the stormwater from entering onto Respondents’ properties, the court held that the developer’s “good faith attempt to comply with the order [did] not warrant a finding of contempt.”

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter. 

Tenant’s Failure to Surrender Possession of Premises Allows Lessor to Retain Security Deposit

Atlantic Coast Builders & Contractors, LLC v. Lewis, No. 27044.

Atlantic entered into a commercial lease for property owned by Lewis.  After taking possession of the property and making improvements to it, Atlantic discovered that zoning restriction prohibited commercial use on the property. Atlantic continued possession of the premises but stopped paying rent.  The lease provided for a security deposit in the event of Atlantic’s default of its obligations. Atlantic filed suit against Lewis for negligent misrepresentation, unjust enrichment, breach of the lease, and breach of the covenant of quiet enjoyment. The master found for Atlantic and required Lewis to return the $3,500 security deposit.  The court of appeals affirmed the master’s findings and Atlantic petitioned the supreme court for writ of certiorari. The court affirmed the court of appeals, and then substituted this opinion after a petition for rehearing.

“[W]here a decision is based on more than one ground, the appellate court will affirm unless the appellant appeals all grounds because the unappealed ground will become law of the case.” Based on this rule, the majority determined that considerations of Lewis’s arguments were barred. Lewis appealed only the master’s findings of negligent misrepresentation and breach of contract, not unjust enrichment.

The court reversed the court of appeals on the issue of Atlantic’s entitlement to return of the security deposit. This issue was preserved on appeal since it was set out in Atlantic’s complaint, denied in Lewis’s answer, and presented through witness testimony before the master. Lewis was entitled to retain the security deposit based on the clear language of the lease and Atlantic’s failure to surrender possession of the premises. Further, the supreme court held that Lewis would not be unjustly enriched by retaining the deposit.

Chief Justice Toal disagreed with the court’s determination of the Two-Issue Rule in her separate opinion.  The Chief Justice did not believe this rule would preclude the court from considering Lewis’s arguments because “where the question of preservation is subject to multiple interpretation, any doubt should be resolved in favor of preservation.”  The Chief Justice likened this stringent application of the Two-Issue Rule to a game of “gotcha” where mistakes of attorneys are showcased.  The Chief Justice would have held that this was an unenforceable and illegal contract because the contemplated purpose of the lease was contrary to zoning restrictions.

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter. 

Liability of a Parent Corporation for Construction Defects

Magnolia N. Prop. Owners Ass’n, Inc. v. HeritageComm. Inc., No. 4943.

A property owners association (POA) filed suit for construction defects in a condominium complex. Appellants are three corporations: HCI (parent corporation), HMNI (seller) and Buildstar (general contractor).  HCI created separate corporations for every development it constructed for the purpose of operating as cost centers. HMNI was the cost center for Magnolia North POA and Buildstar supervised construction at Magnolia North.            

The POA board of directors initially consisted of officers of the Appellant corporations.  During this time, unit owners discovered various construction defects. The officers assured POA members that the defects would be timely cured.  The POA filed suit after turnover of the board from the developer to the unit owners. The POA asserted causes of action of negligence, breach of express warranty, breach of warranty of workmanlike services, and breach of fiduciary duty.  The court affirmed the jury’s award of $6.5M in actual damages and $2M in punitive damages. 


Amalgamation is a theory of holding a parent corporation liable in place of its subsidiary where evidence shows that corporate interests, entities and activities are blurred to the point that separate legal distinctions can be ignored.  This is not piercing the corporate veil, as fundamental unfairness and fraud are not required elements. The court compared the instant case with Kincaid v. Landing Devel. Corp. where amalgamation was found between three distinct corporations.  In the instant case, the court pointed to the following facts for upholding the trial court’s finding of amalgamation:

1.     HCI, HMNI and Buildstar “shared officers, directors, office space and a phone number”

2.     The corporations shared employees

3.     HCI held itself out to the POA as the corporation responsible for construction defects in its written warranty

 Equitable Tolling

A three-year statute of limitations applied to the POA’s causes of action. Appellants argue the statute of limitations started when construction defects were discovered, marked by the POA’s first meeting on March 8, 2000.  The court disagreed and held that the statute did not begin to run until the date of turnover.

The court relied on the recent case of Hooper v. Ebenezer Senior Svcs and Rehab. Ctr., where the supreme court described equitable tolling as a “doctrine to suspend or extend the statutory period to ensure fundamental practicality and fairness . . . It has been observed that equitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control . . . To deny [equitable tolling] would permit one party to suffer a gross wrong at the hands of the other.”

The POA board consisted of the corporations’ officers until turnover, so it is unreasonable to expect that the POA would have brought suit before the homeowners gained control of the board. As soon as turnover occurred, the POA promptly filed suit.  The court upheld the trial court’s ruling on equitable tolling.

Equitable Estoppel

The Appellant corporations were equitably estopped from asserting the statute of limitations as a bar to the POA’s claim because the Appellants induced the POA’s delay in filing suite.  The court held that deceit is not an essential element of estoppel; it is enough that the party “reasonably relied on the words and conduct of the party to be estopped in allowing the limitations period to expire.”  Appellants assured the unit owners that the construction defects would be repaired, so it was reasonable for the unit owners to give the Appellants time to make good on these promises before filing suit. 

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter. 

Contractors: You Must Timely File Notice of Claims with Your CGL Carrier

Sheehan Constr. Co. v. Continental Casualty Co., 938 N.E. 2d 685 (Dec. 2010).

A contractor failed to provide its CGL insurance company with notice of claims against it for over two years.  The underlying claims were based on construction defects by the contractor’s subs.  The insurance company refused to tender coverage based on prejudice for the untimely notice.  The court sided with the carrier and held that although the underlying claims may have warranted coverage by the carrier, failure to provide timely notice was fatal to the contractor.  There was no need for the carrier to prove it was actually harmed because the contractor’s failure to notify allows the presumption of presumption of prejudice to arise in favor of the insurance company. That presumption then must be rebutted by the contractor (insured).  Because the contractor failed to set forth any evidence that its failure to provide notice did not prejudice the carrier, the court held that the denial of coverage was appropriate.

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.

Recent SC Case on Enforceability of Liquidated Damages

The South Carolina Court of Appeals in Erie Ins. Co. v. Winter Constr. Co., 393 S.C. 455, 713 S.E.2d 318 (Ct. App. 2011), held that the administrative burden provision in a Subcontract was enforceable.  The provision provided:

If SUBCONTRACTOR fails to cure an event of default within seventy-two (72) hours after receipt of written notice of default by WINTER to SUBCONTRACTOR, WINTER may, without prejudice to any of [its] other rights or remedies, terminate the employment of SUBCONTRACTOR and [ . . .] WINTER shall be entitled to charge all reasonable costs incurred in this regard (including attorney[‘s] fees) plus an allowance for administrative burden equal to fifteen percent (15%) to the account of SUBCONTRACTOR.           

The Subcontractor, Fountain Electric, agreed to each provision of the Subcontract and even initialed every page.  Fountain Electric defaulted and Erie, its surety, made a demand against Winter for payment of remaining contract balances.  Winter withheld $350,000 based on the administrative burden provision.

Erie filed suit against Winter for breach of contract.  Erie argued that the liquidated damages provision is an unenforceable penalty and that it was entitled to attorney’s fees.  The trial court granted Erie’s motion for summary judgment on the issue that the provision was unenforceable.

On appeal, the court reversed the trial court’s holding and determined that the provision was enforceable.  The appellate court based its analysis on the test set forth in Tate v. LeMaster, 231 S.C. 429, 441, 99 S.E.2d 39, 45-6 (1957):

Implicit in the meaning of ‘liquidated damages’ is the idea of compensation; in that of ‘penalty,’ the idea of punishment. Thus, where the sum stipulated is reasonably intended by the parties as the predetermined measure of compensation for actual damages that might be sustained by reason of nonperformance, the stipulation is for liquidated damages; and where the stipulation is not based upon actual damages in the contemplation of the parties, but is intended to provide punishment for breach of the contract, the sum stipulated is a penalty.

The court determined that the provision of the subcontract was clearly meant to compensate Winter for administrative costs in the event that Erie failed to complete the work on time.  The court held that it would be impossible to determine the actual and consequential damages resulting from a subcontractor default, so a liquidated damages provision was appropriate.  The sliding scale approach of the administrative burden clause was a “reasonable and fair liquidated damages provision.”  In light of both contract interpretation and public policy the court upheld the provision as enforceable.

This site and any information contained herein is for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.

Limited Home Warranty Waived Implied Warranty of Habitability

Jones v. Centex Homes, 189 Ohio App. 3d 668 (2010).

The Joneses entered into a sales agreement with Centex Homes for the construction of a new home.  The agreement included a Limited Home Warranty provision covering defects in materials and workmanship.  The provision also contained a clause purporting to waive any and all express or implied warranties of habitability or fitness. 

Under the law in most states, a new homebuilder impliedly warrants to a purchaser that the home is structurally safe and free from defects.  In some states, it is incredibly difficult if not impossible to disclaim this warranty.  However, both the trial court and court of appeals in this Ohio case found that the buyers contractually waived their claims by virtue of the Limited Home Warranty. 

The court of appeals seemed to place great emphasis on the fact that the Joneses were in their 30s and 40s and made the conscious decision to enter into this agreement without the aid of an attorney.  The court relied on basic contract principles of freedom of contract and the presumption that a party reads what he signs.  The court also noted that although the Limited Home Warranty provision was not emphasized in the contract, it was also not hidden or in small font.  Because the language was clear and unambiguous and because the parties voluntarily entered into the agreement, the court upheld the waiver as the homebuyers' exclusive remedy.

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.

SC Court of Appeals Reduces Punitive Damages Award in Construction Case

Hollis v. Stonington Dev. LLC, No. 4869, 2011 S.C. Ct. App. LEXIS 215 (Aug. 17, 2011).

Two families sued a development company for damages to their jointly owned property.  The Plaintiffs' land includes two man made ponds built by family members over 50 years ago.  Stonington purchased land upstream from the property to build a residential subdivision.  The Plaintiffs alleged that as a result of the project, they experienced severe flooding, were hindered from accessing their homes, and their ponds were raised four feet due to sediment deposits.  The cost to restore the Plaintiffs' property was estimated at $250,000.

The Plaintiffs further claimed that the Defendant Stonington violated state and local laws concerning erosion control and runoff, disregarded engineer recommendations, and misled them about its remediation plans.

At trial, the jury returned a verdict for the Plaintiffs in the amount of $400,000 in actual damages and $3.5 million in punitive damages.  Punitive damages are awarded when the conduct of the defendant is particularly egregious.  Stonington appealed this verdict to the SC Court of Appeals, where the punitive damages amount was reduced to $2 million.

The appellate court noted that it has the authority to set an upper limit range for punitive damages while still giving deference to the jury's determination.  In determining whether a punitive damage award is excessive, courts look to the degree of reprehensibility of the defendant's conduct, the ratio of compensatory damages awarded, and a comparison of the punitive damages awarded for similar misconduct.

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.   

LLC Members are not Protected from all Liability

Sturm v. Harb Development, 298 Conn. 124, 2 A.3d 859 (2010).

Members of limited liability companies may be surprised to know that they can be sued individually when they personally direct or participate in tortious conduct. This is not the same as piercing the corporate veil, and does not require the plaintiff to allege facts to show that the corporate veil should be pierced.

In this case, a homeowner sued a contractor for breach of contract, negligence, fraud, and negligent misrepresentation in connection with the construction of a new home. The trial court held that the plaintiff failed to allege facts sufficient to pierce the corporate veil, so the contractor could not be held personally liable. On appeal, the plaintiff homeowner argued that piercing the veil was unnecessary because he was asserting liability against the defendant based on his individual actions, not trying to hold the contractor vicariously liable for the actions of the LLC. The court determined that a member of an LLC is not liable for the actions of the LLC merely because of his position within the company. However, when the member personally directs or participates in tortious conduct, he cannot hide behind the corporate shield.

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.

Sub Lulled into Believing Contractor Would Pay

Cleveland Construction, Inc. v. Ellis-Don Construction, Inc., 2011 N.C. App. LEXIS 641 (April 5, 2011).

The statute of limitations tolled on a subcontractor awaiting payment from a general contractor. Usually this would bar the sub's claims, however, the court in this case held that the GC made promises to the sub that payment was forthcoming from the owner. The GC also encouraged the sub to hold off on filing suit so the two could assert a united front against the owner. The court held that under these circumstances, it was reasonable for the sub to rely on the GC's promises of payment and the statute of limitations should not bar the sub's recovery.

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.

Liquidated Damages Upheld Unless Extraordinarily Disproportionate

Weis Builders, Inc., 2010 ASBCA No. 56306, LEXIS 13 (Feb. 17, 2010).

The U.S. Army Corps of Engineers awarded Weis Builders, Inc. a design/build contract for family housing at Minot AFB in North Dakota valued at $350 million.  The liquidated damages provision of the contract and both disputed task orders stated that failure to complete the work on schedule would result in $2,400/day until the work was completed or accepted plus $35/day for each incomplete house.

Weis failed to complete both task orders on time, which resulted in a total $1.3 million in liquidated damages.  Weis argued that the provision was unenforceable because the government's actual damages were less than $1.3 million and that the late turnover requirement was ambiguous. Both the contracting officer and the Armed Services Board of Appeals denied Weis's claim.

Liquidated damages provisions will be upheld unless they are extraordinarily disproportionate to the actual damages suffered, thus penalizing the breaching party.  The difficulty lies in actually proving that the liquidated damages are extraordinarily disproportionate, especially in government contracts where it is hard to predict at the outset what damages the government will suffer if the contract is breached.

In this case, the liquidated damages were tied to reasonable estimates of the government's predicted losses in the event that the construction was not completed on time.  $2,400/day was an adequate measure of the administrative costs and personnel costs that the government could have been expected to spend, and the $35/day was based on the need for housing military families in hotels until the construction was complete.  The Appeals Board also determined that the government need not prove the exact measure of calculation of liquidated damages so long as they were based on reasonable estimates.

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice.  Seek a competent attorney for advice on any legal matter.

About D. Ryan McCabe

I practice law with McCabe, Trotter & Beverly, PC in Columbia, South Carolina. I primarily practice in the areas of Construction Law, Community Association Law and Business Law. I am a former drywall, stucco, steel stud framing, and painting contractor. I was a USG Certified EIFS Contractor and currently hold a SC Residential Specialty Contractors license.

Contact D. Ryan McCabe

McCabe, Trotter & Beverly, PC The Atrium 140 Stoneridge Drive, Suite 650 Columbia, South Carolina, 29210 P (803) 724-5005