Thursday, December 14, 2017

Contract forum selection clauses are generally enforceable in Maryland lawsuits.

Maryland's United States District Court reinforced long-standing law that a forum selection clause in a commercial agreement will be enforced absent fraud. It further held that broadly drafted language may include disputes that arose during the negotiation and formation of the contract.

On November 7, 2017 Judge Blake decided White Oak v. Alstom, a contract dispute arising from the construction of a power generation facility in Maryland. The plaintiff sued for fraud and various pre-contract actions of the defendant. The contract made by the parties had a forum selection clause-- it stated that all disputes arising from and related to the contract must be litigated in the courts of Virginia.

The plaintiff sued in Maryland's federal court, and the defendant made a motion to transfer based on the contract language.

Judge Blake made a quick and clear analysis of the existing cases to reach her result-- the case would be transferred to Virginia.  The plaintiff was stuck with the broadly worded clause that encompassed not just performance issues during the existence of the contract, but formation issues that pre-dated the existence of the contract. The plaintiff could not wedge the facts of the case into any exception to the general rule.

Forum selection is an important issue that is often ignored when contracts are made by our clients before our involvement. Such language is often buried in the boilerplate of somebody's form agreement, and it is rarely negotiated unless a lawyer is involved. However, its operation can force an aggrieved party to litigate claims in a distant state, with application of unfamiliar procedures and substantive law. The White Oak plaintiff learned that filing in the wrong jurisdiction can also add thousands of dollars in legal fees to a claim.

When negotiating your next agreement with an out-of-state entity, be mindful of forum selection language. A little bit of research will lead you to a much better informed decision before you sign the contract.

Monday, November 6, 2017

Maryland's Construction Trust Fund Statute has obvious limits.

We read almost all the cases published by Maryland's appellate courts, even the non-published ones. The non-published opinions cannot be cited as binding precedent in later cases, but they are important.  A case is sometimes not formally reported because it confirms basic things Maryland lawyers know, or should know.

The November 1, 2017 case entitled C&B v. Dashiell is a good review of some basic construction law. The case began with a very familiar situation:  A sub-contractor was not paid by a general contractor.

The sub-contractor had worked on six different jobs for the general contractor, but had not been fully paid. The sub sued for over $200,000.  As part of the lawsuit, the sub sued the owners of the general contractor, individually.

Maryland's Construction Trust Fund Statute can impose personal liability on the owners of a general contractor where money paid on behalf of a sub-contractor's work is wrongly used. For instance, a GC might use money paid by the owner based on the subs pay application to pay down a bank line of credit, or mounting supplier accounts. The GC might direct the subs money to pay rent, the light bill, or taxes.  The GC might also pay the subs money direct to individual owners to repay loans, or as salary and expense reimbursement. Just about all of this is improper.

But the sub-contractor lost on its claims against the individual owners of the GC  (after taking consent judgments against the GC corporate entity). The case was lost at trial, and lost again on appeal because the sub did not put on essential proof that the trust fund statute applied to this particular situation.

The mere fact that the sub was owed over $200,000 over multiple projects did not automatically qualify the claim under the trust fund statute. The sub had to demonstrate that the work for which the money is owed either 1) arose from a public project covered by Maryland's Little Miller Act; or 2) arose from a private project for which a mechanic's lien could be taken.

Why? Because the Maryland legislature put those limitations in the trust fund statute. In cases involving private construction projects you must put on proof that the work is lienable under the mechanic's lien statute before you may sustain claims under the trust fund statute for personal liability.

The  proof is not difficult-- It requires a demonstration that the total value of the project (and not just the unpaid balance sued upon) meets the percentage of value formula in the mechanic's lien statute:

Every building erected and every building repaired, rebuilt, or improved to the extent of 15 percent of its value is subject to establishment of a lien in accordance with this subtitle for the payment of all debts, without regard to the amount, contracted  for work done for or about the building and for materials furnished for or about the building, including the drilling and installation of wells to supply water, the construction or installation of any swimming pool or fencing, the sodding, seeding or planting in or about the premises of any shrubs, trees, plants, flowers or nursery products, the grading, filling, landscaping, and paving of the premises, the provision of building or landscape architectural services, engineering services, land surveying services, or interior design services that pertain to interior construction and are provided by a certified interior designer, and the leasing of equipment, with or without an operator, for use for or about the building or premises.
 This requires proof. The judge cannot speculate that because the amount sued upon is large that it must fall within the 15% rule. In this case, the $200,000 sum was not sufficient proof that the sub had a lienable claim, and thus it could not demonstrate standing to make claim against the individual owners of the GC under the trust fund statute.

Your construction lawyer should know this.