No Clear Winner And Mixed Results Sealed That Conclusion, With A Mechanical, Arithmetic Approach Not Being The Dispositive Calculus.
Residential owners, contractor, and subcontractors got into a brouhaha about the construction on a residential house, resulting in residential owners winning $160,000 on a contractual delay claim, contractor winning $535,000 on a contractual cross-claim for nonpayment (reduced to $375,000 after offsetting the $160,000), and subcontractors settling out with owner for around $972,000 in settlements. Owners also won on some negligence design claims, which were offset by the various settlements and awards. The lower court, based on a contractual fees clause, decided neither owners nor contractor were prevailing parties, concluding the results were mixed and owners’ settlement offers showing they were willing to settle well under their more inflated trial demands.
The “no prevailing party” determination was affirmed on appeal in Dickerson v. Perry & Papenhausen, Inc., Case Nos. D076080/D076471 (4th Dist., Div. 1 Apr. 28, 2021) (unpublished). Contrary to contractor’s position, the analysis on that issue is not purely mechanical or arithmetic in nature, but also entails scrutiny of equitable considerations. Both sides recovered on their contract claims, but contractor received much less than the $980,000 sought, owners recovered on their negligence claims, and settlement offers by owners demonstrated that they sought much less than the “swinging” $4.9 million number put before the jury. No fees for anyone in this case.