Commercial Real Estate, Finance, and Banking
Jury Verdict of $1,000,000 for Commercial Tenant in Lease-Assignment Dispute
After a week-long jury trial, obtained for plaintiff tenant a jury verdict of $1,000,000 – the full amount requested – for damages against defendant landlord. Jury found that landlord breached promises in lease, including promises not to unreasonably withhold consent to tenant’s proposed assignment to comparable commercial tenant. Award represented 100% of damages requested. Case settled confidentially after bench trial on attorneys’ fees but before judgment. (Lead counsel.)
Winning Las Vegas $19 Million Deficiency Judgment
We obtained a $19 million judgment on behalf of lender in contested deficiency judgment case over valuation of Las Vegas-area properties in which lender contended value had dropped from $30 million (at time of initial $13.5 million loan in 2006) to less than $4.23 million (at time of foreclosure in 2010). After a day-long bench trial, the Clark County district court awarded full deficiency, plus interest, of $19.8 million.
Favorable Settlement for Regional Bank in Claim Against Major Appraiser
We represented a large regional bank in claim against a major appraisal firm. Our client suffered loan losses after a borrower defaulted and left our bank with collateral that had substantially less value than the valuations in the appraisals. The bank’s contract with the appraiser required the appraiser to measure the building’s square footage, yet the appraiser’s calculation of square footage overstated the actual square footage by more than 55,000 square feet (about the size of a football field) and roughly 150% of the building’s actual square footage. After 14 months of litigation, the case settled favorably under a confidentiality agreement.
Successful Resolution of Large-Scale Commercial Deed Restriction Litigation
We represented a large financial institution in its challenge of the enforceability of commercial deed restrictions in a large retail property. Our client asked the district court to enter a declaratory judgment invalidating those restrictions under doctrines of changed conditions and waiver. The deed restrictions encompassed seven commercial owners, and each of the six other owners vigorously opposed our client’s claims for relief. After the district court granted summary judgment against our client, an appellate court reversed, and the dispute settled favorably thereafter as part of a complex land transaction.
Successful Verdict in Defense of “As Is”/Real-Estate Fraud Claim
The plaintiff investor demanded $33 million from the jury. However, the district court dismissed the investor’s claims for out-of-pocket damages because the investor failed to produce evidence of them. Further, in part because the plaintiff investor declined to inspected the building before buying it and signed a provision purchasing the building “as is, where is, with no warranty,” the jury awarded his net down payment of $330,000 – before apportionment for plaintiff’s proportionate responsibility, which jury found to be 50%. After the plaintiff sued his trial counsel for malpractice, but before the court entered final judgment, the case settled favorably.
Jury Verdict for Insurance Brokerage General Agent on 5% of $15,000,000
We represented the plaintiff, an insurance brokerage agent, who had underwritten roughly $212,000,000 in life insurance that had generated commissions of $15,000,000. The defendant seller of the policies lacked the skills or the contacts to conduct the underwriting, so he asked our client to do the work, promising to pay him 5% of the commissions, or $750,000. The agreement was oral, but later documentation supported its existence, as well as our client’s prior course of dealing on other transactions in which the defendant seller had paid 5%.
Unbeknownst to our client, however, the defendant seller had promised half of the commissions to two other agents as a way of settling an unrelated dispute. We filed suit and after a week of trial, the jury found for our client all unpaid commissions ($625,000 of the $750,000), validating our client’s 5% oral contract as well as his claims for fraud, conversion, and breach of fiduciary duty. Moreover, the jury found that we had proven fraud by clear and convincing evidence, entitling our client to punitive damages. The court called the defendant back to trial for the punitive damages phase the same day, but before that happened, the case settled favorably for our client.
Successful Defense of Defaulting Purchaser Following Hurricane Harvey in “Time of the Essence” Contract
We represented the purchaser of a professional services firm who had defaulted on the payment of a $4 million installment payment because an amendment to the purchase agreement set the payment date for a Saturday during Hurricane Harvey and the Labor Day weekend. The amendment stipulated that “time is of the essence,” and the seller asserted claims for more than $6.1 million based on provisions allowing for default interest and attorneys’ fees.
Both sides filed motions for summary judgment. The plaintiff sellers seemed to have the better side of the argument, but our defendant purchaser argued that the amendment that contained the “time of the essence” provision did not exclude the prior terms under the promissory note, which allowed for a five-day notice-and-cure provision, much less the error of the amendment stipulating the deadline on a date that happened to be a Saturday during Hurricane Harvey and Labor Day weekend. Our client had cured the deficiency the following Tuesday, the earliest possible business day a payment could have been processed by the seller’s bank. Based on those arguments, the court denied both parties’ motions for summary judgment and the case settled favorably.
Representation of Enterprise Resource Planning Company in Leverage-Buyout Disputes
We represented a closely-held enterprise resource planning (“ERP”) company in which the company’s original owners had sold their interest to the LBO purchaser who mismanaged the company, necessitating the return of the prior owners.
We represented the company in three related disputes arising out of the failed LBO. First, the company challenged its private-equity mezzanine lender’s treatment of various forms of “term debt,” including proper allocation of payments as to different “term” obligations,” the issuance of common unit warrants, and payment of board fees. Second, the company sued the former LBO-financed executives, who had acquired their ownership by means of a leveraged buyout, for deficiencies on their obligations to the original owners, who had assigned their notes to the company. Third, the company faced claims for indemnity by the private-equity mezzanine lender for indemnity for lawsuits that the former executives had filed against it.
The case involved two actions in New York state court (one in Westchester County and another in New York County); and a separate action in Illinois state court (Cook County). After extensive negotiations the matter settled favorably, with a restructuring of the remaining debt owed to the private-equity mezzanine lender.
Representation of Lender in Litigation and Later Restructuring of Debt of Financing of Professional Services Firm
We represented a large regional bank in its litigation against, and then settlement of, a $7.7 million loan loss, against a large professional services holding company and 12 regional subsidiaries. The initial litigation sought a temporary restraining order and initiating an article 9 public sale of the borrower’s collateral. Within days of filing, the parties agreed to a terms sheet contemplating, and later a final complex settlement, involving the sale of the professional practices to a private-equity purchaser in an asset purchase agreement and related agreements. The settlement included subsequent accounting verification of working capital deficits of the practice sold to the private-equity purchaser and related calculations of adjustment escrow and indemnity escrow accounts that led to further disputes but, ultimately, a satisfactory resolution.
Defense of $12,000,000 Fraudulent Inducement Claims Regarding Commercial Property
We defended a major financial institution after it sold a large commercial tract and purchaser later accused institution of fraudulently concealing defects in the property. The purchaser initially demanded $12,000,000 in damages, but we set out to prove that the purchaser’s claims were groundless. First, we established in the deposition of the purchaser’s contractor that the contractor warned the purchaser about the defects. Second, we established through hard-fought written discovery that the purchaser disclosed the defects to an insurer well before the purchaser’s supposed discovery of them. The case settled for a small fraction of that.
Settlement of Mutual Mistake (“Scrivener’s Error”) in Real-Estate Deed
In a textbook example of a mutual-mistake case, our client had erroneously signed a deed that included a partial of property that the parties had excluded from the sale and that did not appear in the purchase-and-sale agreement or the closing statements. The purchaser initial refused to rescind the deed, but after we filed suit, the purchaser relented under favorable terms following a mediation.
Successful Defense of Family Sued for Fraud for Nearly a Million in Fraud
In this case, tried before Judge Russell Austin in Harris County Probate court, David Bissinger defended the a family over their deceased father’s sale of a house in Briargrove Park against the purchaser’s claim of fraud, negligence, and DTPA. The purchasers sought nearly $1,000,000 in damages over allegedly undisclosed termite damage, including more than $200,000 in attorneys’ fees and unspecified punitive damages.
The defendant family members hired David five weeks before trial, after two other law firms failed to settle case. David first obtained a ruling striking the plaintiffs’ expert, who opined that the property suffered from “stigma” damages, separate and apart from the cost of repairs. The expert based his opinion on “market studies” he failed to attach to his report or bring to his deposition, stating only that the studies were “in my head.”
Second, after a week-long trial – which was particularly terrifiying for the defendant family, given not only their inexperience in the courtroom but also their lack of involvement in the sale of the property – the jury awarded the plaintiffs $39,200, a small fraction of what they sought at trial, and small fraction of what they had spent in attorneys’ fees. (One of the plaintiff purchasers wailed in shock in court after the jury read its verdict.) Moreover, David’s clients obtained a recovery of $61,000 against Orkin, third party defendant. The family settled with plaintiffs for the $61,000 to avoid the expense of any appeals.
Obtaining Dismissal after Jury Selection of Fraud Claims Against Bank Client
We defended a large regional bank that had held the senior lien position in a residential subdivision under development. The case involved complex facts, including our bank’s selling off of its loan interest to a finance company, which refused to release liens that a co-signor to the borrower contended our client’s loan officer promised would be released. Perhaps in light of the complexity of the case, the district court denied our motion for summary judgment. In pretrial proceedings, however, the district court began to appreciate that the alleged oral statements our client’s loan officer had no bearing on the binding deeds of trust and notes. The district court thus excluded in its pretrial rulings many of the facts the junior lienholder sought to prove at trial in rulings the lienholder later alleged were “lopsided,” “inconsistent,” and “unfairly skewed the trial.”
For our client, the drama culminated in jury selection. With the credit crisis of 2008-2009 looming in the news, we asked the panel of prospective jurors about their opinions regarding banks. One juror responded in colorfully negative terms that cause a mild uproar of laughter in the courtroom, and encouraged other jurors to acknowledge that they might not be able to be impartial if asked to decide a case involving a bank. These answers from the panel led the district court to strike thirteen potential jurors for cause, in addition to our six peremptory strikes, giving us a decided advantage. The junior lienholder nonsuited our client before opening statement, the court granted a directed verdict in favor of the finance company, and the court of appeals affirmed.
Dismissal of Fraud and Wrongful Foreclosure Claim Against Bank
We defended a large financial institution that had held the senior lien in a 348-acre tract of undeveloped suburban real estate and foreclosed its lien when the borrower defaulted on its note to our client. A junior lienholder sued our client for wrongful foreclosure, contending that our client had made oral promises to sell the land to the junior lienholder and that our client failed to notify the lienholder of the foreclosure sale.
We removed the lawsuit from state court to federal court. We defeated the junior lienholder’s motion to remand to state court after the junior lienholder sought, unsuccessfully, to add a new defendant to destroy diversity jurisdiction. We also won a motion to dismiss the junior lienholder’s principal claims for failure to state cause of action. After the junior lienholder filed a lis pendens that clouded our client’s title that prevent our client from selling the land, the court granted our motion to expunge the lis pendens. The junior lienholder then filed in the district court, and then the before the court of appeals, emergency motions to stay the order expunging the lis pendens. Both the district court and court of appeals denied those motions.
Summary Judgment in Large-Scale Check-Kiting Case
We represented a large regional bank in its prosecution of a massive check-kiting scheme that resulted in more than $1,300,000 in losses to the bank. Obtained a final judgment for the entire amount within six months of filing suit.
Summary Judgment for Bank in Factoring Case
We defended a regional bank that had agreed to factor (that is, to purchase at a discount) the accounts receivable of a construction company. After the construction company defaulted, our client directed the construction company’s customers to send payments to the bank, and not the customer, as is customary in the factoring business and as the factoring agreement provided.
The construction company that had sold its receivables to the bank nevertheless sued the bank for business disparagement, contending that the notice to the construction company’s customers injured the construction company’s reputation. Then-District Judge Tracy Christopher granted partial summary judgment in favor of our client on the grounds that the factoring agreement contained an exclusion for lost profits. Although a partial summary judgment, the plaintiff had no other damages it could allege and the case was dismissed with prejudice shortly thereafter.
Summary Judgment in UCC Article 5 Letter-of-Credit Case
We defended a regional bank against a customer who sued for wrongful honor of sight drafts made against letter of credit. The customer – a broker in the industrial steel business – contended that that the bank used the wrong corporate name and therefor wrongfully honored a supplier’s drafts against the letter of credit. We obtained a summary judgment dismissing the customer’s claims of wrongful honor.