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Fred Mahar Wins Motion for Summary Judgment on a Professional Malpractice Claim


Mr. Mahar represented an architect who had provided design services for a homeowner’s substantial home renovation and addition project. The homeowner made extensive changes to the project throughout the design phase, which lasted for nearly 6 years. Once the final plans were complete, the homeowner learned that relocating the septic system on the property would allow for a more desirable layout for the addition. Upon learning this information, the homeowner demanded that the architect redesign the project free of charge, asserting that the architect should have advised of the option to relocate the septic system. The architect refused on the basis that the septic system was an engineering issue outside the scope of his services, and the owner had retained their own civil engineer. The homeowner then retained a replacement architect, who subsequently determined that a setback variance was needed in order to construct the original architect’s final design.


The homeowner filed suit pro se against the original architect alleging damages in the amount of the replacement architect’s fee and the fee paid to the civil engineer to redesign and relocate the septic system. The homeowner obtained an affidavit of merit against the original architect stating that the architect’s services deviated from the acceptable standard of care as it related to the setback variance issue only. After the exchange of some limited discovery, Mr. Mahar filed a motion for summary judgment based on two arguments: 1) there was no causation between plaintiff’s alleged damages related to the replacement architect’s fee and the original architect’s failure to identify the setback issue as it was not discovered until after plaintiff had retained the replacement architect; and 2) plaintiff’s affidavit of merit was not sufficient to support a claim against the original architect for damages related to the septic system relocation, which was a civil engineering issue.


The judge granted the motion for summary judgment in favor of the architect. In an accompanying written opinion, the judge stated that there was no causal link between the plaintiff’s replacement architect’s fees and the alleged error of the original architect in failing to identify the setback issue. The judge further reasoned that the plaintiff’s affidavit of merit was not sufficient to sustain a claim against the architect for any damages resulting from the septic system civil engineering issue and that the 120-day period to serve an affidavit had expired. Thus, plaintiff’s entire complaint against the architect was dismissed.


Following the court’s dismissal of plaintiff’s claims, the homeowner submitted a formal complaint against the architect to the State Board of Architects based on the same allegations as in the court complaint. Mr. Mahar and the architect prepared a detailed response drawing on the same arguments from the motion for summary judgment and citing to the court’s decision, but tailored specifically to the Board to provide additional project background and difficulties during the project that would resonate with other architects. The Board dismissed the homeowner’s complaint without conducting a hearing.


Thompson Becker, LLC provides a wide range of both transactional and litigation services for the construction related professionals and their businesses. We have successfully prosecuted and defended various types of construction related claims. Contact us at (856) 616-8886 to see how we can help you with your construction law needs.



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