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Lost Profit Claims in Construction Litigation: Speak Now, Or Forever Hold Your Peace?

In an unpublished February 18, 2014 decision, the North Carolina Court of Appeals (“COA”) refused to let a project owner pursue drastically higher lost profit damages after its counterclaim had been tried, appealed and remanded for further findings on the issue of damages.

Image by Nemo / pixabay.com

Image by Nemo / pixabay.com

In J.T. Russell & Sons, Inc. v. Silver Birch Bond, LLC, the owner, Silver Birch Pond (“SBP”), was the developer of a subdivision that had hired a paving company to perform the project’s asphalt paving work for about $150,000.  SBP refused to pay for the work, citing deficiencies in the contractor’s performance.  At trial, SBP successfully defeated the contractor’s claim for payment and prevailed on its own counterclaim for construction defects, but on appeal, the contractor successfully argued that the jury’s award of damages wasn’t fully supported by the evidence.  The COA agreed, sending the case back to the trial level for further findings of fact on various damages issues.

That’s when SBP tried to up the ante on its alleged lost profit damages.

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