How To Resolve A Dispute Over Property Rights In The United States

Transcription

1 LEONARD S. LEVY, ESQ. Mediator Arbitrator Case Summaries The following are Case Summaries, in each area of specialization. Please note that I have grouped them into three tiers. Tier 1 consists of the primary areas of my mediation practice. Tier 2 consists of those areas in which I have mediated a number of cases, and feel I have developed some expertise. Tier 3 consists of those areas in which I have mediated a few cases, or am otherwise familiar with the subject matter and issues. I feel comfortable mediating in all areas listed. TIER 1 Commercial Contract/General Business Dispute between demolition company and owner of an industrial manufacturing plant over the rights to proceeds of the sale of equipment removed from the plant. Two parties. Dispute involving payment for goods shipped (electronics), claimed to be non-conforming and defective. Two parties $450,000. Dispute between health food supplement manufacturer and sales agent, including claims under California s Independent Wholesale Sales Representatives Contractual Relations Act of Two parties. Dispute between purchaser and seller of a manufacturing business including claims of breach of contract, fraud and misrepresentation, and offsetting claim for amounts due under a note. Two parties. Plaintiff purchased automobile at a sale pursuant to the foreclosure of a mechanic s lien. When he took the car to be serviced at a dealership, the dealer s manufacturer seized the car and sold it, as it had not been paid by the car s purchaser (who had left the car at the mechanic s shop without paying for the repairs). Statutory notice issues. Dispute between purchaser and manufacturer of clothing, including claims of breach of contract, two parties. -1-

2 Collection action involving claims of defective goods and Commercial Code issues. Two parties. Alleged fraudulent transfer of real estate to avoid judgment execution, four parties, $47, Dispute between recreational facilities manager and operator of the facility, for an accounting of funds and offsetting claim for salary due. Two parties. Contractual dispute between purchaser and seller of video tapes, including claims of conversion and fraud. Two parties. Dispute over amount due for delivery of flowers to flower business. Two parties. Construction Suit by current owner of beach front property involving issues of construction defects, real estate broker negligence, fraud, insurance claims handling (duties of good faith and fair dealing), and alleged failure by seller to disclose. Parties included general contractor, 19 subcontractors, sellers of property, real estate brokers, insurance brokers, and insurance carriers for brokers, contractors and subcontractors. $2,600,000 in damages alleged. Claim for recovery of unpaid contract balances involving issues of change orders, extras claimed, delay damages, and subcontractor and surety liability issues. Six parties (insurance issues were also involved) Suit by contractor against subcontractor in connection with the construction of a military shooting range. Subcontractor sued for unpaid invoices totaling in excess of $100,000. General contractor claimed cost to correct defects (as subcontractor s work had been rejected by the Navy), as well as delay damages. Construction contract involving landlord-tenant build-out issues including claims for delay damages, consequential damages, failure to pay for change orders, construction defects, damages caused by landlord to completed construction, and lease requirements for build-out of additional space. Three parties, $192, plus attorneys fees claimed by landlord (which included claims by unpaid contractor); damages in excess of $200, plus attorneys fees claimed by tenant. Construction dispute including claims of defective and substandard work as well as cross complaint for amounts due under construction contract. Two parties, each claiming in excess of $140, Construction dispute in the context of a Mechanics Lien foreclosure action, including claims for -2-

3 extra work and delay. Two parties. Claim by material supplier for failure to pay for materials, consisting of HVAC units, delivered to two construction projects. Surety issues also involved. Three parties. Construction dispute between owner-builder and geotechnical engineering consultant alleging professional negligence. Two parties. Claim for repair of defective construction and offsetting claims for amounts due under a construction contract. Includes claim on surety bond. Three parties. Insurance (Includes Surety, Fidelity, and Bad Faith) Claim for recovery of unpaid contract balances involving issues of change orders, extras claimed, delay damages, and subcontractor and surety and liability insurance issues. Six parties. Complaint for rescission of Comprehensive General Liability policy for failure to disclose prior claims of sexual harassment, and cross-complaint for failure to defend action brought for sexual harassment against CEO of insured. Two parties. Life insurance broker was alleged to have committed professional negligence when plaintiff was allegedly advised to allow a life insurance policy to lapse, and failed to advise plaintiff of her right to convert the policy to permanent life insurance without evidence of insurability, while he attempted to place her with another insurer. The new insurer rejected the application based on medical conditions known to the broker. $1,290,000 alleged in damages. Broker professional liability policy issues, as well. Interpleader action by insurance company regarding life insurance proceeds, including claims that the beneficiaries were involved in killing the insured. Four parties. Claim under an insurance policy for damages to home as a result of the Northridge Earthquake, carrier claiming that the damages were preexisting. Two parties. Claim under an insurance policy for damages to home as a result of the Northridge Earthquake, and for bad faith. Two parties. Claimed wrongful lapse of a $50,000 life insurance policy, with bad faith allegations. Claim against insurance company, agency, and motor vehicle dealer for breach of oral contract, breach of implied covenant of good faith and fair dealing, and negligence in connection with the claimed coverage for theft of a motorcycle. Five parties. -3-

4 Real Estate/Landlord-Tenant (Note: As a practicing attorney, I represented numerous title insurance company insureds in various matters involving easements, property line disputes, and title search issues) Dispute between homeowners and film producer for emotional distress, trespass and damages to residence claimed to be caused by explosions set off during the filming of a motion picture. Two parties. Claim of right to use, and to fence off common area within Homeowners Association. Three parties. Non-monetary relief sought. Adjoining commercial property owners with mutual easements disputed the rights and obligations under the easements, resulting in a suit for enforcement and interpretation, including issues of liability for maintenance and repairs, and rights of future use. Two parties, equitable relief sought in action, plus liability for expenses incurred in excess of $100,000. Dispute between purchaser and seller of real property and seller's real estate agent, based on claims of fraud. Three parties. Claim by owner of real property that neighbor had cut down 12 large trees on plaintiff s property. Two parties. Claim by owner of property whose neighbor had cut the branches of an oak tree to improve his view. Claim that he believed the tree was on his own property. Claim of diminished property value in the amount of $175,000. Dispute between landlord and tenant who claimed constructive eviction, Two parties. Claimed failure to disclose construction defects, claimed to have been known to sellers who remodeled the real property prior to sale. Two parties. Landlord began charging tenant for parking, despite provision in the lease to the contrary. Tenant signed estoppel certificate stating that the landlord was in compliance with the lease. Suit for $97,000 refund. Dispute between homeowners' association and owner for damages and expungement of lien based on allegations of negligence, fraud, negligent misrepresentation and breach of contract. -4-

5 Three parties. Commercial tenancy dispute involving claims of abandonment of tenancy, and rent due, two parties. Personal Injury Traumatic brain injury alleged when law enforcement officer struck female plaintiff multiple times in the face and head as she was on the ground. Excessive force alleged. Claim of food poisoning against market and food supplier. Three parties. Claim by tenant against landlord for personal injuries claimed to be suffered as a result of the landlord's allowing molds and mildew to build up in the residence. Four parties. Elderly woman fell when defendant s unleashed dog charged at her and her smaller dog. Fractured hand. Injuries, including broken hip, to elderly woman alleged to have been incurred through the negligence of a professional caregiver in failing to supervise plaintiff. Three parties. Six elderly day care center residents injured when the center s van stopped suddenly. Wrought iron fence fell on plaintiff, injuring her back, neck and shoulders. Slip and fall by 80 year old woman at a department store causing a fracture, torn ligaments, and bruises. Two parties. Hit and run automobile versus bicycle accident involving multiple injuries Two parties. Injuries to a customer at a car repair facility when a pit bull entered the waiting area and attacked claimant, biting him on his calf, thigh and abdomen causing profuse bleeding, and ultimately scarring. Four parties. Claimed injuries by nursing home resident who suffered a broken hip. Two parties. Slip and fall in a department store as a result of an alleged defect in a shopping cart which fell on -5-

6 plaintiff's leg, causing ligament and joint damage. Two parties. Serious head and nerve injuries suffered when structure at a swap meet collapsed. Two parties. Assault, broken knee, bruising, arising out of fight at a commercial establishment. Four parties. TIER 2 Employment Claim of sexual harassment of secretary by owner of company. Two parties. Claim of disability discrimination and constructive wrongful termination, after plaintiff went on a three to four week medical leave for eye surgery, which, due to complications lasted approximately 3 months. Following that leave, plaintiff claimed she was constructively terminated. Two parties. Wrongful termination and sexual harassment claim. Defendant employer admitted to touching plaintiff s shoulders, the sides of her stomach, and grabbing her waist. Claimed basis for termination was a bad attitude and missing work, but plaintiff claimed retaliation for complaints about inappropriate touching. Also involved wage and hour issues. Two parties. Wrongful termination, hostile work environment and sexual harassment claim brought by manufacturer/employer s two assembly line employees. Three parties. Former employee alleged breach of employment contract, entered into under circumstances where plaintiff had given up a lucrative job and moved across country to work for the defendant. Employee was fired for allegedly not meeting the goals of her position. Two parties. Wage and Hour Claim for lost income, rest period penalties, meal period penalties, waiting time penalties, Labor Code 226(a) penalties, and employer s unpaid share or FICA, FUTA, and Unemployment Insurance. Two parties. Claim for unpaid wages, in excess of $50,000.00, with cross-complaint for appropriation of trade secrets. Two parties. Medical Malpractice -6-

7 Claim by plaintiff who became a quadriplegic as a result of a misdiagnosed subarachnoid bleed. Three parties. Wrongful death claim against psychiatric facility for failure to prevent death of young adult who died as a result of a fall after climbing on the top of a caged stairway, after being left without supervision. Three parties. Burns suffered by plaintiff undergoing MRI as a result of metal being present in sheet covering her. Four parties. Dental malpractice claim that unnecessary extractions and other dental work had been undertaken without informed consent. Two parties. Claimed brain injury as a result of hitting head on a footrest while having an x-ray. Two parties. Partnership/Corporate Disputes, including Dissolution Mediated, then arbitrated (at the parties insistence) the dissolution of a 35 year partnership between two parties, whose partnership included three corporate entities, the individuals and the partnership signing as guarantors for the issuance of surety bonds, as well as the need to equalize partnership draws for personal expenses over 32 of the 35 years the partnership was in existence. The matter was further complicated by the accidental destruction of the partnership s computer records, incomplete non-computerized records, the need to trifurcate the issues and issue three separate arbitration awards on those issues, and the illness of one of the parties, all necessitating hearings over a 14 month period. Amount in controversy, over $4,000,000.00, plus attorneys fees. Claimed partnership interest in a clothing manufacturing business, which was denied by the defendant. Four parties, $980, plus attorneys fees claimed to be due. Plaintiff invested in a corporation and claimed conversion of funds and embezzlement in excess of $770,000 by those running the corporation, demanding an accounting. Partners in dispute over the amount of a buyout, and which partner had the right to exercise the buyout provisions of a buy-sell agreement. The buyout related to a medically related facility. Two parties. Homeowners Association -7-

8 Homeowners association claimed easement over a portion of plaintiff s property, for purpose of installing a pump for a waterfall. Homeowner claimed damages in excess of $50, Claims that homeowners association permitted a homeowner to maintain numerous trees, blocking views, and that the homeowner was required to remove the trees. Non monetary relief sought. Condominium Association sought to have the purchaser of a residential unit remove a gazebo and patio awning, which had been constructed by the prior owner. Claim was that the Association had certified, prior to close of escrow that the unit was in compliance with the applicable CC & R s. Non-monetary issues. Claim that homeowner in condominium complex was violating CC & R s by conducting major construction projects in his units, using noisy power tools, including tile cutting tools which disturbed neighbors. Also, the unit owner and his live-in girlfriend engaged in noisy, often physical altercations, which required police intervention. Non monetary issues. Condominium unit owner placed a large, offensive sign in his front window, in violation of Condominium Association rules. Non monetary issues. TIER 3 Products Liability Claim that defective wine refrigeration unit malfunctioned and caused a fire, destroying $1,000,000 wine collection, as well as a residence. Six parties. Claim that defective refrigeration unit caused a fire which destroyed a restaurant. Manufacturer denied liability and pointed to other causes of the fire. Three parties. Claim that in ground circuit breakers failed to protect against a power surge, which destroyed equipment. Two parties. Fee Dispute (Note: I am on the Los Angeles County Bar Dispute Resolution Services Panel as an Arbitrator and Mediator of Attorney-Client Fee Disputes, and have arbitrated and mediated numerous -8-

9 attorney-client fee disputes) Attorney-client fee dispute over $1,800,000 arising out of settlement of underlying case in excess of $22,000,000. Attorney claimed there had been an oral modification of the retainer agreement. In a case arising out of a medical malpractice/elder abuse hybrid action settled by the attorney with the client s consent, the issue was the extent to which MICRA applied. At issue was $850,000 in attorneys fees. Claim for attorneys fees on multiple matters handled by law firm, claim $68, Claim that the personal relationship between attorney and client was such that the attorney agreed to perform services on a pro bono basis. Claimed, $12, Legal Malpractice (Note: In addition to being on the DRS Fee Dispute Panel, as noted above, I am on the State Bar Panel, administered by the DRS. Those mediated matters almost always involve claims of legal malpractice. I have mediated numerous such disputes) Complex Litigation In the vast majority of the years I practiced law, I was lead counsel in complex litigation matters in a variety of subject areas including surety, construction, fidelity law and other insurance related matters. These cases familiarized me with issues involving banking, stock brokerage, real estate and other issues. Examples of these cases are: Complex fidelity insurance matter relating to a claim by a real estate investment trust (REIT) that an employee had committed acts of dishonesty by extending the due date on various loans. The trial was a six month jury trial, followed by an appeal (published decision). Complex claim by the FSLIC on a Bankers Blanket Bond. The matter involved a claim that loans made by loan officers in a bank taken over by the FSLIC were fraudulent, and that the fidelity bond carrier owed in excess of $25,000,000. Related to multiparty action filed by the FSLIC involving more than 50 individual defendants. Complex claim made by a savings and loan which resulted in litigation, which included the depositions of more than 55 individuals in 75 days. Matter terminated on summary judgment, affirmed on appeal in a reported case. -9-

10 Surety bond litigation involving more than 8 major construction projects on which the bond principal had defaulted, including subrogation claims arising out of payment of some losses. -10-