[
 {
  "id": "williamson-music-v-eqyinvest-2026",
  "source": {
   "caseName": "Williamson Music 1st, LLC, and Raymond Gore v. EQYInvest Owner II, Ltd., LLP",
   "court": "Texas Sixth Court of Appeals (transferred from the Second), on appeal from the 342nd District Court, Tarrant County",
   "docket": "06-25-00107-CV",
   "decided": "2026-09-15",
   "url": "https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=40c019e5-6590-43be-b02a-bf7b73239fec&coa=coa06&DT=Opinion&MediaID=fd5f6f98-b91a-4602-8ea3-97940423829c",
   "excerptNote": "documentText is verbatim from Parts I, III.C and III.D of the opinion, with every sentence stating the trial court's award, its findings, or the appellate court's conclusions removed."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the landlord, EQYInvest Owner II, Ltd., LLP, in a suit on a shopping-center lease and its personal guaranty against the former tenant, Williamson Music 1st, LLC, and its guarantor, Raymond Gore, pending in the 342nd District Court, Tarrant County, Texas. The tenant stopped paying rent, was locked out, and the space has since been relet. The case is set for a bench trial on damages. The landlord also seeks its attorney's fees under the lease. The facts below are from the record.",
   "documentText": "Williamson Music signed a shopping center lease agreement (Lease) with EQYInvest Owner II, Ltd., LLP, as landlord. Gore signed the Lease as a guarantor. The Lease term began in April 2022, was to continue for approximately three years, and would have expired on July 31, 2025. Rent was $5,857.33 per month, which on an annual basis is $70,288.00 per year. Williamson ceased paying rent in August 2023, and EQY locked Williamson out of the premises on August 18, 2023. EQY later sued Williamson for breach of the Lease and the guaranty.\n\nAfter Williamson failed to pay rent in August 2023, EQY locked it out later that month. EQY relet the premises to a new tenant, Jaydev Cards, Inc. d/b/a Trudy's Hallmark (Hallmark), effective July 22, 2024. EQY's lease with Hallmark provided Hallmark with 150 days' free rent, so Hallmark did not begin paying rent until approximately January 1, 2025. When EQY sued Williamson for breach of the Lease and guaranty, it sought, among other amounts, damages of $170,484.37 representing past-due rent owed under the Lease from August 1, 2023, through December 21, 2024, the overlap of the remainder of Williamson's lease and Hallmark's lease term. Williamson sought an offset for the rent and interest EQY claimed for months that overlapped with Hallmark's lease term, calculated at $62,096.52. Williamson also claimed EQY failed to credit it with $20,000.00 worth of furniture and equipment that EQY locked in the leased premises and did not return to Williamson.\n\nWilliamson contends that EQY failed to reasonably mitigate. Williamson's argument could also be described as an assertion that EQY mitigated, and received non-rent benefit(s) from that mitigation, but failed to pass along that benefit to Williamson. Williamson contests the period spanning from July 2024 through December 2024. During that time, the lease of the replacement tenant had begun, but the replacement tenant, Hallmark, was not paying rent. Williamson does not contest EQY's mitigation from January 2025 through July 2025, when Williamson's Lease would have ended. Williamson cites to the testimony of Stephanie Rippe, EQY's Senior Property Manager, who testified that EQY received an enhancement to the value of the shopping center in exchange for giving Hallmark free rent. Williamson argues that EQY \"failed to credit [it] with the . . . months of [free] rent that it gave to Hallmark for valuable construction improvements and enhancement to the property value.\" Williamson complains that it was entitled to credit for all the \"free rent\" months during which Hallmark's lease overlapped with its own.\n\nWilliamson's Lease provides that Williamson would remain liable if EQY gave \"free rent or concessions\" to a replacement tenant. The Lease provides as follows: [EQY] . . . may . . . relet the Leased Premises . . . at such rental or rentals and upon such other terms and conditions as [EQY] in its sole discretion may deem advisable, . . . and [Williamson] shall pay all costs of such reletting including, but not limited to, the reasonable cost of any such alterations and repairs made to the Leased Premises, reasonable attorneys' fees and brokerage commissions related to obtaining possession and making a new lease with another tenant, free rent or concessions, lease assumptions and any other costs reasonably associated with reletting the Leased Premises. Williamson cites Section 91.006(b) of the Texas Property Code, which provides that any lease provision \"that purports to waive a right or to exempt a landlord from a liability or duty\" under the statutory requirement to mitigate damages \"is void.\" Williamson, however, does not assert that this provision (or any provision) of the Lease is void. Taken as a whole, Williamson's argument is that EQY benefited in non-rent ways from Hallmark's build-out, and that this should have been credited to Williamson as rent.\n\nThere was evidence that giving a free-rent period to new tenants was the usual practice at EQY's shopping center. David Schulenburg, a leasing agent for EQY, testified that he normally gave free rent to tenants when they signed a lease. Schulenburg likewise gave Hallmark 150 days' free rent. The purpose in giving the free rent, he said, was \"[t]o allow them to have some time to build out their space and commence business.\" Williamson itself was given ninety days' free rent when it moved into the property. Williamson cites no evidence that EQY could have leased the premises to Hallmark (or to any other tenant) for any amount immediately after Williamson stopped paying rent, or for any amount at any time prior to the time Hallmark started paying rent. Williamson points to no evidence establishing the dollar value of Hallmark's build-out.\n\nWilliamson also complains that EQY's damages should be reduced by $20,000.00 to account for the value of Williamson's personal property remaining on the premises when EQY locked Williamson out for non-payment of rent. Williamson urges that EQY's failure to \"tak[e] commercially reasonable efforts to either sell or return the property\" constituted additional failure to mitigate. Williamson does not contend that it asked to retrieve the property but was rebuffed. Williamson urges that EQY never asked Williamson to retrieve the property. Williamson, however, does not point to any provision of the Lease which requires EQY to ask Williamson to retrieve the property. The Lease provides that in the event of default, EQY was entitled to enter the leased premises and remove all or part of Williamson's property and sell that property for EQY's benefit, or to store the property at Williamson's cost and for Williamson's account. The Lease further provides that if Williamson failed to remove trade fixtures or other property at the termination of the tenancy, these items would be deemed abandoned, and at EQY's option, would become EQY's property or could be removed or stored at Williamson's expense, or sold, with the proceeds belonging to EQY. Rippe testified that, under the Lease, she had the right to dispose of the personal property left on the premises. Rippe said that she waited approximately six months to dispose of the personal property because Gore had told her he was \"trying to collect money in order to get back into the space.\" Rippe testified that Gore never asked for access to remove the personal property. The value of the personal property was disputed."
  },
  "outcome": {
   "amount": 170484.37,
   "amountIsTheRequestedAmount": true,
   "date": "2026-09-15",
   "description": "After a bench trial the court awarded the landlord $170,484.37 in past-due rent, the full amount it sought, with no credit for the $62,096.52 free-rent overlap offset or the $20,000 personal property. It also awarded $86,725.00 in attorney's fees. On appeal the rent damages were affirmed and the fee award reversed.",
   "attorneysFeesAtTrial": 86725.0,
   "attorneysFeesOnAppeal": "reversed",
   "finalAmount": 170484.37,
   "finalNote": "Rent damages affirmed; fee award reversed."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "empower-school-v-covenant-2026",
  "source": {
   "caseName": "Empower School, LLC v. Covenant Management Systems, LP",
   "court": "Texas Court of Appeals, Third District, at Austin (appeal from 53rd District Court of Travis County, No. D-1-GN-20-002332)",
   "docket": "No. 03-24-00448-CV",
   "decided": "2026-07-03",
   "url": "https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=aac76815-becc-4ad3-ab4b-a3a3fbaca4f0&coa=coa03&DT=Opinion&MediaID=5090a08e-c161-4dbe-b9e0-3821a05a8e3f",
   "excerptNote": "Verbatim from the opening paragraph (first two sentences only) and Part I Background, with footnote 3 folded in as a sentence. Removed: the sentences describing the jury's verdict, the trial court's judgment on the verdict, the list of declarations, the damages/fee award, the motion for new trial and motion to reconsider, the appellate court's statement of its conclusion, two sentences of appellate commentary ('Thus, by any interpretation...' and 'But under either interpretation...'), footnote 2, and Section 3(a) of the quoted lease clause (for length). The Section 3(c) and Exhibit G block quotations were joined into running text without altering words."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": true,
   "description": "We represent Covenant Management Systems, LP, the prospective tenant under a twelve-year lease of an entire 19,331-square-foot commercial building in Round Rock, Texas, intended for use as a specialty medical clinic. Covenant sued the landlord, Empower School, LLC, in Travis County district court seeking a declaration that the landlord's obligation to eliminate the swimming pool and renovate the pool area was a condition precedent to lease commencement, that the lease never commenced, and that the landlord must return the deposit Covenant paid; the landlord has counterclaimed for breach of contract. The court has found the clause ambiguous and denied the landlord's Rule 248 motion, and the case is set for a jury trial on whether the clause is a covenant or a condition precedent.",
   "documentText": "Appellant Empower School leased a commercial space to appellee Covenant Management Systems, LP. After Empower failed to make certain renovations to the space's pool area, as set out in Section 3(c) of the lease agreement, Covenant refused to accept the premises and filed suit, seeking a declaratory judgment that the lease had not commenced and that it was not obligated to accept the premises in their unsuitable state.\n\nEmpower provides therapeutic and educational services to children on the autism spectrum. In 2015, Empower acquired commercial property in Round Rock, Texas, and began providing services there. However, to supplement its bottom line, Empower began leasing portions of the 19,331 square foot building, including the swimming pool, to other entities. In 2018, Empower decided to lease the entire property, including the swimming pool, to other entities at a higher rate, as it began searching for other, more affordable spaces out of which to operate.\n\nEmpower hired Asterra Properties as property brokers to locate tenants for the building. Through this process, Empower and Covenant eventually began negotiating a twelve-year lease for the entire property. Covenant provides administrative services to Austin Regional Clinic (ARC), which in turn provides medical services to patients. Covenant sought to rent the property on ARC's behalf for use as a specialty clinic. During lease negotiations, Covenant sought either to exclude the pool area from the lease agreement or have the swimming pool removed and filled in prior to the commencement of the lease. The Asterra Properties broker assured Covenant's broker via email that \"[t]he landlord will demise the pool from the clinic space.\" On August 9, 2018, Covenant signed a letter of intent reflecting that Empower would \"convert pool area to useable space and install HVAC.\"\n\nOn October 26, 2018, Covenant and Empower executed a lease agreement for the entire property, including the swimming pool. Covenant paid Empower $96,291.09 as a deposit. As part of the lease, the parties agreed as follows: (c) Condition of the Premises. By executing the Lease, Tenant shall be deemed to have accepted the Premises in their AS-IS condition as of the date of the execution except for specific Landlord work requirements related to the Pool Area as described herein. Landlord is required to completely fill, remove and fill, or use another commercially approved method to eliminate the pool and renovate the Pool Area to at least a shell condition consistent with the standards of the rest of the building, including a slab foundation level with the existing pool deck.\n\nThe lease agreement further specified that the term of the lease would commence \"on the date established by Exhibit 'G' ('Commencement Date').\" Exhibit G, the Commencement Date Memorandum, provided, in relevant part: Unless Landlord exercises its option to defer commencement as set forth fully below, the Commencement Date of the Lease shall be the date upon which Landlord and Tenant mutually agree that Tenant accepts the Premises, but not more than Three Hundred Sixty-Five (365) days after the day the Lease is executed. Landlord shall have an option to defer the commencement date for a period of One Hundred Eighty (180) days by giving Tenant written notice of Landlord's intent to defer not less than nine (9) months after execution of the Lease.\n\nTherefore, during this time, Empower sought to minimize losses by continuing to lease the pool area to a third party and continuing to operate its business out of the property while it continued searching for a different building to move into. On July 15, 2019, Empower exercised its option under the lease agreement to defer the commencement date by 180 days. However, it continued to postpone filling in the pool area to generate additional rental income. It was not until April 13, 2020, that Empower's contractor applied for a permit with the city of Round Rock to fill in the swimming pool. And it was not until April 21 that Empower signed a lease to move its operations to a different building. Nevertheless, on April 23, Empower notified Covenant that the property would be ready and the lease would commence on April 26.\n\nThe parties proffer different consequences associated with the date April 23, 2020; Empower urges that this was the date by which the lease would begin, regardless of whether it completed the pool renovations, whereas Covenant argues that this was the date by which Empower was required to complete the pool renovations, or else Covenant's obligations under the lease would not arise. According to Empower, the renovations were finished on April 25, 2020, and according to Covenant, even those renovations did not bring the pool area \"to at least a shell condition consistent with the standards of the rest of the building,\" as was required by Section 3(c).\n\nThus, Covenant refused to accept the premises and instead, on April 27, it filed suit, seeking a declaratory judgment that, inter alia, (1) Section 3(c) of the lease, which required Empower to complete the pool renovations, was a condition precedent to commencement of the lease, (2) Empower had not timely and adequately completed the pool renovations, (3) Covenant was not obliged to accept the premises and the lease had not commenced, and (4) Empower was obligated to return the $96,291.09 that Covenant had paid as a deposit. Empower answered and counterclaimed for breach of contract and fraud.\n\nOn July 5, 2023, Empower filed a motion pursuant to Rule 248, requesting that the court find that Section 3(c) was not a condition precedent to Covenant's performance. The court denied this request, found \"that the section is ambiguous,\" and left the issue of whether the section was a covenant or a condition precedent for the jury to decide."
  },
  "outcome": {
   "amount": 96291.09,
   "amountIsTheRequestedAmount": true,
   "date": "2026-07-03",
   "description": "After a four-day jury trial the jury found Section 3(c) was a condition precedent that Empower failed to satisfy; the trial court rendered judgment declaring the lease abrogated and ordered Empower to pay Covenant $96,291.09 in damages (the deposit), $611,491.45 in attorney's fees, and $135,000 in conditional appellate fees. The court of appeals held Section 3(c) is a covenant, not a condition precedent, reversed the entire judgment, rendered take-nothing on the condition-precedent declarations, and remanded the remaining declarations, the damages and fee awards, and Empower's breach-of-contract counterclaim.",
   "attorneysFeesAtTrial": 611491.45,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Reversed and remanded; no final figure yet."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes"
 },
 {
  "id": "shaw-v-am-development-2026",
  "source": {
   "caseName": "The Law Office of Melvin O. Shaw, P.L.C. v. A & M Development, L.L.C.",
   "court": "Iowa Court of Appeals (appeal from Iowa District Court for Johnson County)",
   "docket": "No. 25-1285",
   "decided": "2026-08-19",
   "url": "https://www.iowacourts.gov/courtcases/26627/embed/CourtAppealsOpinion",
   "excerptNote": "Verbatim from Part I (Facts and Prior Proceedings), the parties' contentions in Part III.A-B, and the undisputed timeline recited in Judge Greer's dissent. Removed: the sentences stating the district court's damages award and per-square-foot figure, the district court's findings on the estoppel/mitigation defenses, and every appellate holding. The dissent's footnote characterizing A & M's conduct as a breach was also omitted. Extraction whitespace artifacts corrected."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": true,
   "description": "We represent the plaintiff-tenant, a solo law practice leasing a commercial office condominium unit in the Plaza on 5th mixed-use development in Coralville, Iowa, suing its former landlord A & M Development in the Iowa District Court for Johnson County for breach of contract. The lease gave the tenant a right of first refusal that the landlord admits it did not honor when it sold the unit to a third party in August 2015; the tenant sued in April 2023. The landlord defends on estoppel by acquiescence (waiver) and failure to mitigate given the seven-year delay. The case is set for a bench trial on liability and damages.",
   "documentText": "Located in Coralville, Plaza on 5th is a multi-use real estate development built in 2013. Plaza on 5th houses the Coralville Center for the Performing Arts, residential condominium units, and several commercial office spaces. It was owned and operated by A & M Development, a company created by Hahn and Morelock to keep the real estate business separate from their construction company. When the building was finished, A & M hired real estate broker Teresa Morrow to manage its interests.\n\nMelvin Shaw is an attorney who has been in solo practice since 2006. In 2013, Shaw expressed interest in moving his firm into Plaza on 5th, and the parties drafted a letter of intent to lease. The letter of intent provided for three three-year renewal periods with an option to purchase the unit at the end of the third year of the base period. Later, the parties reached different terms. Instead of a purchase option, Shaw held a right of first refusal to purchase the unit if A & M received a bona fide third-party purchase offer. That lease term required notice to Shaw:\n\nTenant shall have a Right of First Refusal to purchase the Unit. If Landlord receives a Bonafide third party offer to purchase the condominium unit, Landlord shall send written notice to the Tenant giving the terms of the offer to purchase. Tenant shall have forty-five (45) days to arrange financing and commit to purchase of the Unit at the offered price. If Tenant does not commit to purchase the unit and close within sixty (60) days of Landlord notice of the first offer, Landlord shall be free to sell the unit to the third party. The Landlord and Tenant agree to execute and record a Memorandum of Lease to establish this option of record.\n\nTwo years into Shaw's lease, broker Morrow was approached by a third-party buyer, the Mostafavi family. Morrow negotiated the sale of some units in the development, including Shaw's office. The deal closed in August 2015. A & M did not notify Shaw that an offer was presented or that a sale was completed.\n\nShaw learned of the sale months later when speaking with a neighboring tenant. In 2019 and 2020, Shaw negotiated a lease with the new owners, bargaining again for the right of first refusal. At the same time, he asked about purchasing his unit. During those two years, he sent emails on at least four occasions to Morrow—who continued to manage the property—and to representatives of the Mostafavi family. On Morrow's advice, the Mostafavi family declined to sell. Finally, in 2022, Shaw demanded to know the terms of the Mostafavi offer. A & M acknowledged failing to honor Shaw's right of first refusal. But A & M contended that Shaw's subsequent actions had waived any claims related to that right. Shaw then sued A & M for breach of contract.\n\nIn calculating the unrealized appreciation, Shaw estimated his unit to be worth $275 per square foot.\n\nA & M asserts that by remaining silent, Shaw led it to believe that he had acquiesced to the breach. A & M also contends that by negotiating lease renewal terms with the new owners, Shaw impliedly waived his breach of contract claim. A & M points to evidence that Shaw remained idle for years, and incurred greater damages by doing so.\n\nThe timeline is undisputed. Before the lease was negotiated and signed at the end of 2013, Mike Hahn, a principal of A & M, met Shaw in the buildout of the unit and received feedback about what Shaw might need in the office space. According to Hahn, Shaw could not purchase the property at that time. The property Shaw leased was sold by A & M to Mostafavi in August 2015. As a part of the deal, Mostafavi was assigned and assumed all existing leases, including Shaw's. The property manager, Teresa Morrow, testified that all tenants would have been mailed notices indicating the new lease holder to be paid and where to send the lease payments, but no copy of a notice was produced at trial. In any event, based upon Shaw's testimony, he knew about the breach by A & M of the contract term related to his right of first refusal by \"[e]arly 2016, fall of 2015.\" At trial, Hahn testified he did not provide a written notice about the purchase, nor did he speak with Shaw again after the property was sold to Mostafavi.\n\nAfter learning of the sale, Shaw, who described himself as a real estate lawyer, continued making lease payments under his existing lease and initially did not make any objections related to the sale of the property. In fact, there was no mention of Shaw's right of first refusal when Shaw emailed Morrow in January 2019 to ask about buying his office from Mostafavi. Then in May, Shaw asked Morrow for a proposed lease agreement but added \"I have a purchase option that I'd like to exercise instead. Let me know if the Mostafavi family will entertain an offer.\" In June, Shaw followed up again expressing an interest to purchase the unit, but the owners were not interested in selling. So in August, Shaw proposed that his renewal lease have a first right of refusal clause, which was rejected by Mostafavi. In August 2020, Shaw again tried to purchase the unit and again the proposal was rejected. Time went by, and in May 2022, Morrow reached out to Shaw to inquire if he still wanted to lease the unit. A new lease was proposed, Shaw did not ask for a right of first refusal, and he renewed his lease in June 2022 with no option for first right of refusal.\n\nNow, seven years out, in August 2022, Shaw sent a letter to A & M and Mostafavi demanding access to the terms of the 2015 purchase. A & M responded asserting that Shaw waived the error in the sale process by making eighty-four lease payments to Mostafavi and then renewing the lease in September 2019 and again in June 2022, extending the lease to July 31, 2025. In April 2023, almost ten years after signing the A & M lease and over seven years after learning of the sale, Shaw petitioned for damages under a breach-of-contract claim."
  },
  "outcome": {
   "amount": 257216,
   "amountIsTheRequestedAmount": false,
   "date": "2026-08-19",
   "description": "After a bench trial the district court awarded the tenant $257,216 in damages plus post-judgment interest, using the tenant's damages methodology (unrealized appreciation, rent-versus-mortgage differential, lost principal) but valuing the unit at the $166.73 per square foot the third-party buyers paid rather than the $275 the tenant proposed. No attorney's fees. The Iowa Court of Appeals affirmed (2-1) on August 19, 2026, rejecting the estoppel-by-acquiescence and failure-to-mitigate defenses.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 257216,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes"
 },
 {
  "id": "gsl-investments-v-bella-nails-2026",
  "source": {
   "caseName": "GSL Investments I, LLC v. Bella Nails & Spa, LLC, et al.",
   "court": "Ohio Court of Appeals, Twelfth District, Butler County (appeal from Butler County Court of Common Pleas, Case No. CV 2024 02 0451)",
   "docket": "CA2025-09-108; 2026-Ohio-2858",
   "decided": "2026-07-27",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/12/2026/2026-Ohio-2858.pdf",
   "excerptNote": "Verbatim from Part I (Facts & Procedural History, paragraphs 2-3, 7-9, 12-14, first sentence of 15) plus the tenant's contentions from paragraphs 21 and 27. Removed: the sentence stating the trial court's summary-judgment amount and post-judgment terms (rest of paragraph 15), the trial court's orders striking filings, the Section 21.2 default definition and Section 22 remedies clause, the First Amendment rent table, the base-rent table, and all appellate analysis. Lease-table rows are joined on one line."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the landlord, GSL Investments I, LLC, owner of the West Chester Village Retail Center in Butler County, Ohio, suing a nail-salon tenant and its individual guarantor in the Butler County Court of Common Pleas for breach of a ten-year commercial lease and guaranty and for contractual indemnification after the tenant stopped paying rent in February 2024 and the landlord terminated the lease and retook the premises. The tenant answered with affirmative defenses, its counsel then withdrew, and the guarantor has been proceeding pro se with a series of filings claiming an unlawful lockout and conversion of the tenant's equipment. The landlord has moved for summary judgment on a principal's affidavit itemizing the sums due, and the motion is pending.",
   "documentText": "GSL Investments owns a multi-unit retail shopping center on Princeton Glendale Road in West Chester, Butler County, Ohio, known as the West Chester Village Retail Center (\"Shopping Center\"). On November 1, 2019, GSL Investments entered into an agreement to lease to the defendants one of the units in the Shopping Center, a 3,126-square foot unit with the address of 8179 Princeton Glendale Road, Suite E (\"the leased premises\"). The commercial lease agreement (\"Lease Agreement\") identified \"Bella Nails Spa, Dung Quoc Nguyen (Kevin)\" as the \"Tenant\" and GSL Investments as the \"Landlord.\" The lease was signed by Nguyen as \"Owner.\" Nguyen also signed a Guaranty of Lease (\"Guaranty\") on November 1, 2019, wherein Nguyen was identified as a \"Guarantor\" who would, on demand, \"perform the covenants and obligations of the Lease,\" including payment of all sums due to GSL Investments, upon the Tenant's default under the terms of the Lease Agreement.\n\nThe Lease Agreement was for a 120-month term and was set to expire on October 31, 2030. The Lease Agreement provided that the Tenant would pay monthly base rent, operating expense rent for the care and maintenance of common areas, late fees and interest on rent not timely paid, and attorney fees upon default. Operating expense rent for common area maintenance (CAM) was set at $1,432.75 for the first 60 months, with the \"CAM Expense to be adjusted after the initial 60 months (5 years).\"\n\nOn December 15, 2022, the parties entered into another amendment to the Lease Agreement, the \"Second Amendment to the Lease.\" This amendment abated, or froze, base rent and CAM for six months, and provided, in relevant part, as follows: 1. Minimum Annual Rental. Beginning on January 1, 2023, Rent and CAM will be abated (frozen) for 6 months from January 2023 thru June 2023 resuming July 1, 2023, the Minimum Annual Rental for the Premises shall be the following amounts for the following periods of time (plus the cost of utilities per the Lease): Period $/SF Monthly 01/01/2023 – 06/30/2023 $0.00 $0.00 7/01/2023 – 6/30/2028 $16.00 $4,298.25 7/01/2028 – 10/31/2030 $18.00 $4,689.00\n\nOn February 29, 2024, GSL Investments filed suit against Bella Nails & Spa, LLC and Nguyen for their failure to fulfill payment obligations under the Lease Agreement and Guaranty. GSL Investments set forth claims for breach of contract and indemnification, alleging that defendants defaulted on the lease by failing to pay rent, operating expense rent, and other fees due under the lease. GSL Investments indicated it had \"accelerated all Rent and Operating Costs for the remainder of the term of the Lease\" given the defendants' default. GSL Investments stated it had \"made a demand on [d]efendants, but . . . [d]efendants have failed and refused to pay the amounts due.\" GSL Investments further alleged that Nguyen, as Guarantor, was \"jointly, severally, and personally liable.\"\n\nOn May 10, 2024, after being granted leave, defendants, through counsel, filed an answer denying the allegations in the complaint and asserting several affirmative defenses. On June 28, 2024, defendants' counsel moved to withdraw as their attorney due to irreconcilable differences and a breakdown in communication.\n\nOn August 7, 2025, GSL Investments moved for summary judgment on its breach of contract and indemnification claims against Nguyen and Bella Nails & Spa, LLC. GSL Investments supported its motion for summary judgment with an affidavit from Andrew Smith, the Principal of GSL Investments. In his affidavit, Smith indicated that defendants had been in default of the Lease Agreement since February 21, 2024, having failed to pay base rent and operating rent as agreed to in the Second Amendment to the Lease. As a result of defendants' default, on August 15, 2024, GSL Investments terminated the Lease Agreement. Smith averred that on that date, the locks were changed on the leased premises, GSL Investments posted a Lease Termination Notice at the leased premises and mailed the Lease Termination Notice via certified mail to Bella Nails & Spa, LLC and Nguyen at the addresses provided in the lease. After defendants failed to respond to either of the lease termination notices and failed to remove their property from the leased premises, GSL Investments paid Advanced Concepts, Inc. $3,000 to have the defendants' furnishings, equipment, and inventory removed.\n\nSmith averred that defendants owed GSL Investments $104,295.80 in overdue rent and fees as of the August 15, 2024 termination of the lease; $3,000 in clean-out costs; $12,416.92 in prejudgment statutory interest, with postjudgment interest continuing to accrue at an annual rate of 8 percent ($8,583.66) or monthly at 0.67 percent ($718.88), until paid in full; $12,010.52 in attorneys' fees; and $416.00 in court costs.\n\nDefendants did not respond to GSL Investments' motion for summary judgment.\n\nIn the Judicial Clarification Motion, Nguyen claimed improvements had been made to the leased premises by defendants with SBA loan proceeds, defendants had been locked out of the premises with equipment/furnishings remaining inside, and that a new tenant was occupying the premises. Nguyen asked the trial court to clarify, among other things, whether the lockout was legal, whether the property defendants' left behind at the leased premises had been disposed of, and whether GSL Investments' actions amounted to property conversion. Nguyen contends that GSL Investments created a \"phantom\" limited liability company by naming Bella Nails & Spa, LLC as a defendant in the action and that the Lease Agreement and subsequent amendments to the Lease Agreement were not with the limited liability company Bella Nails & Spa, LLC. Rather, he argues, the Lease Agreement was with him personally, doing business as \"Bella Nails Spa.\""
  },
  "outcome": {
   "amount": 120128.72,
   "amountIsTheRequestedAmount": true,
   "date": "2026-07-27",
   "description": "On September 4, 2025 the trial court granted the landlord summary judgment for $132,139.24, exactly the sum itemized in the landlord's affidavit ($104,295.80 overdue rent and fees, $3,000 clean-out costs, $12,416.92 prejudgment interest, $12,010.52 attorneys' fees and $416 court costs), plus 8 percent post-judgment interest and collection fees; the amount recorded here is the judgment less the $12,010.52 in attorneys' fees. The Twelfth District affirmed on July 27, 2026, holding the guarantor forfeited his lockout, notarization and phantom-LLC arguments by not opposing the motion.",
   "attorneysFeesAtTrial": 12010.52,
   "appellateChange": "affirmed",
   "finalAmount": 120128.72,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "tres-botes-v-shree-maa-krupa-2026",
  "source": {
   "caseName": "Tres Botes, LLC & Dos Botes Entertainment, Inc. v. Shree Maa Krupa Properties, Ltd. & SDP Hotel, LLC",
   "court": "Texas Court of Appeals, Thirteenth District (Corpus Christi-Edinburg), on appeal from County Court at Law No. 3, Cameron County",
   "docket": "No. 13-26-00255-CV",
   "decided": "2026-09-17",
   "url": "https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9f7b53a3-e9d0-4aeb-948c-509e94a6bf80&coa=coa13&DT=Opinion&MediaID=b99beda1-cada-45d1-8793-0f9d08618041",
   "excerptNote": "Verbatim from Part I (Background) and the parties' summary-judgment evidence and arguments recited in Parts II.B and II.C incl. footnote 7. Removed: the sentence and footnotes 4-5 stating the trial court's September 22, 2025 judgment amounts, and all appellate analysis/holdings."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the landlords, Shree Maa Krupa Properties, Ltd. (SMK) and SDP Hotel, LLC (SDP), in the County Court at Law No. 3 of Cameron County, Texas. Two bar tenants under separate commercial shopping-center leases vacated before the end of their terms and stopped paying rent; the landlords sued for breach of the leases, and the tenants answered with defenses built on lease sale-of-premises clauses and (for one tenant) a denial that the lease was ever renewed. The landlords have filed a traditional partial motion for summary judgment on the breach-of-contract claims based on the tenants' discovery responses, and the motion has been set for hearing.",
   "documentText": "Appellees and their owner, Pankaj Patel, filed suit against appellants on November 15, 2024. The petition alleged that in May of 2012, Dos Botes entered into a ten- year lease to operate a bar named “The Toucan Lounge” at a shopping center owned by SDP in Cameron County. According to the petition, a five-year lease renewal became effective in May of 2022 at a rate of $9,000 per month, but Dos Botes abandoned the premises in May of 2024 and moved the bar to a new location across the street. The petition argued Dos Botes thus breached the lease and owed $324,000, representing the thirty -six months remaining in the renewed lease term . It also sought a declaration that the business name “The Toucan Lounge” belongs to SDP and Patel. The petition further alleged that in May of 2021, Tres Botes entered into a lease to operate a bar at a different shopping center in Cameron County, this one owned by SMK. According to the petition, the lease was for six years at a rate of $4,300 per month, but Tres Botes abandoned the property around September of 2023. The petition alleged Tres Botes thus breached the lease and owed $189,200, representing four months’ delinquent rent and forty-four months remaining on the lease.\n\nAppellees and Patel filed a “Partial Motion for Traditional Summary Judgment” on June 16, 2025, arguing they are entitled to judgment as a matter of law on their breach of contract claims in light of appellants’ discovery responses. On August 1, 2025, appellants filed a response to the motion as well as a “First Amended Original Answer” generally denying the allegations in the petition and asserting several affirmative defenses, including estoppel, fraud, failure of consideration, and anticipatory breach. In their summary judgment response, appellants argued in part: Plaintiffs omitted relevant facts pertaining to the status of the leases at the time of their alleged breaches. . . . Specifically, each lease relied upon by Plaintiffs omits the relevant and critical fact that each property was sold to third parties; a fact that changes the nature of the lease of the Dos Botes claim by eliminating the required contractual consideration, and transforming the lease to a month- to-month lease, and deeming the lease void; and regarding the Tres Botes lease, eliminates the required contractual consideration from the Tres Botes claim, rendering the lease without consideration and unenforceable or void. Appellants noted that both lease agreements contained clauses relieving the landlord of liability in the event the premises are sold. Copies of the subject lease agreements were attached to the summary judgment response, as were deeds evidencing property transfers made by SDP and SMK.\n\nFirst, as to the claim against Tres Botes, SMK pointed to responses to requests for admission in which Tres Botes conceded that: (1) it vacated the subject property prior to expiration of the lease, (2) the lease agreement “was still in effect” at the time it vacated, (3) it did not provide written notice of intent to vacate, and (4) it “did not pay rent for the remaining term of the lease” after vacating. SMK argued that, by virtue of these admissions, all elements of its breach of contract claim against Tres Botes were established as a matter of law.\n\nIn its response, as noted above, Tres Botes invoked a provision in its lease concerning the potential sale of the premises by the landlord during the lease term. The provision states as follows under the heading “31. GENERAL PROVISIONS”: (xv) Sale of Premises by Landlord. In the event of any sale of the Premises and/or the Shopping Center by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale; and the purchaser, at such sale or any subsequent sale of the Premises shall be deemed with out any further agreement between the parties o[r] their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Lease. Appellants’ summary judgment response included a warranty deed showing that SMK conveyed the subject property to YOG Properties, LLC on December 12, 2024. Appellants asserted the “ lease[] terminated by [its] own terms upon the sale of the premises.”\n\nNotably, in response to an interrogatory asking why it vacated the premises, Tres Botes averred: “We vacated the premises because of a lack of business, internal issues among principals, and management issues.”\n\nDos Botes admitted in response to discovery requests that: (1) it entered into a ten-year lease with SDP in 2012, (2) the lease agreement “included two 5 year options after the expiration of the original ten year lease term,” and (3) it “relocated its business to a new address after vacating the leased premises.” SDP argued in its summary judgment motion that, by virtue of these admissions, all elements of its breach of contract claim against Dos Botes were established as a matter of law.\n\nIn response, Dos Botes sought to invoke paragraph 31(xv) of its lease, and it attached a copy of a warranty deed indicating SDP conveyed certain Cameron County property to KSN Hospitality LLC on July 1, 2013. Dos Botes also noted that , i n its discovery responses, it denied that it executed a five-year renewal of the lease or that the lease was still in effect when it vacated the property. Rather, it claimed in an answer to an interrogatory that SDP committed a prior breach of the lease in that: “[SDP] failed to maintain the building and premises; the parking lot was poorly illuminated; [SDP] raised the rental rate; and [SDP] increased the rental by 5% on a new proposed lease agreement that I did not sign, and I did not sign the 5-year option to continue under the old lease.”"
  },
  "outcome": {
   "amount": 187096.44,
   "amountIsTheRequestedAmount": false,
   "date": "2026-09-17",
   "description": "Trial court (judgment signed September 22, 2025) granted summary judgment awarding SMK $79,096.44 against Tres Botes (18 months plus one prorated month at $4,300 until the property was sold) and SDP $108,000 against Dos Botes (12 months at $9,000 until relet), $187,096.44 total; no attorney's fees mentioned. On appeal the $79,096.44 award to SMK was affirmed; the $108,000 award to SDP was reversed and remanded because SDP did not conclusively prove the lease was renewed.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "modified to $79,096.44",
   "finalAmount": 79096.44,
   "finalNote": "$79,096.44 affirmed; the $108,000 Dos Botes award reversed and remanded, so the final total could rise."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "universal-shopping-plaza-v-hong-2026",
  "source": {
   "caseName": "Universal Shopping Plaza v. Piong Bin Hong",
   "court": "California Court of Appeal, Second District, Division Seven, on appeal from Los Angeles County Superior Court",
   "docket": "B348490 (Super. Ct. No. 25NNCV01228)",
   "decided": "2026-09-09",
   "url": "https://www.courts.ca.gov/opinions/documents/B348490.PDF",
   "excerptNote": "Verbatim from the landlord's contention in the introduction and from Factual and Procedural Background parts A, B and C through the trial testimony. Removed: the sentences stating the trial court's rulings (demurrer, findings, July 3, 2025 judgment), the closing arguments, the introduction's reference to the holdover award, lease paragraph 27.1, footnotes, and all appellate analysis/holdings. One sentence is stitched across a footnote break in the PDF."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the commercial landlord, Universal Shopping Plaza, in an unlawful detainer action in Los Angeles County Superior Court against a restaurant tenant holding over month-to-month in a shopping plaza. The landlord served a three-day notice to pay rent or quit demanding $65,989 and sued for possession, that past-due rent, holdover damages at $1,219 per day from March 1, 2025, and attorney's fees; the self-represented tenant contends the withheld rent dates from January-February 2023 and that the notice is barred by the one-year limit in Code of Civil Procedure section 1161(2). The tenant's demurrer was overruled and the matter is set for a court trial.",
   "documentText": "Universal acknowledges that Hong’s missed rent payment for January 2023 and underpayment of the February 2023 rent occurred more than a year prior to service of the three-day notice (on February 12, 2025). But Universal argues the three-day notice was nonetheless valid because the parties’ lease agreement provided that any rent payments made by Hong were to be applied to Hong’s oldest payment obligations.\n\nHong owns the Five Star Restaurant in San Gabriel. On December 19, 2016 Hong and Universal entered into a five-year commercial lease agreement for space in Universal’s shopping plaza on West Valley Boulevard for the period from January 1, 2017 to December 31, 2021. Paragraph 4.1 of the lease, governing payment of rent, stated “[Hong] shall pay to [Universal] without prior demand, deduction, or offset, payable in advance upon commencement of the first month of the term hereof and thereafter on the first day of each calendar month during the original or any extended term hereof, and subject to increases as provided for herein, monthly minimum rent of [$30,625] per month.” The monthly base rent would increase by 3 percent “on the beginning of the second lease year and every year thereafter.”\n\nParagraph 4.5 of the lease, titled “Application of Payments,” provided, “All payments received by [Universal] from [Hong] . . . shall be applied to the oldest payment of obligation owed by [Hong] to [Universal]. No designation by [Hong] . . . shall modify this clause or have any force or effect.”\n\nUpon expiration of the original lease on December 31, 2021, the parties agreed to continue with a month-to-month tenancy. However, Hong did not make a rental payment in the month of January 2023, because he believed he was entitled to a 10- percent discount for 2022 based on a conversation he had in June 2021 with Victoria Chiang, the leasing and office manager for Universal, in which she offered him a rent reduction in light of challenges resulting from the COVID-19 pandemic. On January 5, 2023 Hong sent a letter to Maggie Lei, an accountant and member of the Universal property management team. Hong asserted in the letter that he overpaid rent by $65,989 in the 2022 calendar year because he was not given the promised rent discount. Hong wrote, “Instead of issuing you a check for the January 2023 charges, I am deducting the January charges of $57,388 from my total credit amount of $65,989, which leaves a credit balance of $8,600. I will then deduct the remaining credit amount of $8,600 from the rent that I will owe for the month of February 2023, and issue a check for the difference.” Consistent with his letter, Hong did not pay the rent for January 2023, and his rental payment on February 1, 2023 was $8,600 less than the monthly payment owed. Hong thereafter fully paid the rent for March 2023, and he continued to pay the monthly rent for the next 23 months.\n\nOn February 1, 2025 Hong paid his rent in full in the amount of $66,158. On February 12, 2025 Universal served a “3-Day Notice to Pay Rent or Quit” (three-day notice) on Hong. The three-day notice stated Hong was delinquent in paying his rent and demanded he pay “unpaid rent” in the amount of $65,989 within three days or surrender the premises. The three-day notice did not state for which payment period the rent was due or set forth Universal’s basis for calculating the unpaid rent. After Hong failed to make an additional payment within three days, on February 25, 2025 Universal filed an unlawful detainer complaint using Judicial Council form UD-100. The complaint, which attached the three-day notice, alleged the parties had a written five-year lease agreement; Universal served Hong with the three-day notice by leaving a copy at Hong’s business; at the time of the three-day notice, the “amount of rent due” was $65,989; and Hong failed to comply with the requirements of the notice by the end of the three-day period. The complaint requested possession of the premises, past-due rent of $65,989, holdover damages of $1,219 per day (the alleged fair market value of the premises) beginning on March 1, 2025, and attorneys’ fees.\n\nOn March 12, 2025 Hong, representing himself, filed a demurrer to the complaint, arguing the three-day notice violated section 1161(2) because it required him to pay rent more than one year after it became due. In support of the demurrer, Hong filed a declaration, several documents relating to the parties’ dispute over rent payments and alleged breaches of the lease in 2022, and Hong’s January 5, 2023 letter to Lei.\n\nA three-day court trial commenced on June 6, 2025. Hong represented himself at the trial using a court-certified Mandarin- language interpreter. Universal called Chiang as a witness. Hong testified and called Lei, Stephen Jiang (Universal’s property manager), and Justin Chan (a representative of the shopping plaza’s owner) as witnesses.\n\nA substantial portion of the trial related to the parties’ dispute in 2022 regarding a rent reduction by Universal and Hong’s 2023 lease payments. The undisputed evidence showed Hong withheld $65,989 in early 2023 by paying no rent in January and withholding $8,600 from his February rent payment. Lei testified that on January 25, 2023 Universal sent Hong a notice stating he was in breach of the lease and that he owed $63,127 for the January rent plus late fees. Lei admitted that Hong paid the monthly rent from March 2023 through February 2025. Chiang answered “Yes” when asked whether it would “be accurate to say that once [Hong] fell behind on his rent in 2023, he was always about a month behind in rent because the payments received were applied to the oldest balances.” Further, Chiang confirmed that the “unpaid rent” listed on the three-day notice referred to the missed payments in January and February 2023 “because of the application of payments.”"
  },
  "outcome": {
   "amount": 189100,
   "amountIsTheRequestedAmount": false,
   "date": "2026-09-09",
   "description": "After a three-day court trial the trial court entered judgment for the landlord on July 3, 2025 awarding possession, $65,989 in past-due rent (the amount demanded in the notice) and $123,111 in holdover damages, $189,100 in total; no fee award is stated in the opinion. The Court of Appeal reversed, holding the three-day notice void because the unpaid rent fell due more than one year before service, and remanded for entry of judgment in favor of the tenant.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "reversed",
   "finalAmount": 0,
   "finalNote": "Reversed: the three-day notice was void, so the landlord takes nothing in this action."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "mckinney-v-park-plaza-properties-2026",
  "source": {
   "caseName": "Shayne McKinney v. Park Plaza Properties, LLC",
   "court": "Arkansas Court of Appeals, Division IV, on appeal from Sebastian County Circuit Court, Fort Smith District",
   "docket": "No. CV-25-361 (circuit court No. 66FCV-22-1104)",
   "decided": "2026-09-02",
   "url": "https://opinions.arcourts.gov/ark/courtofappeals/en/524547/1/document.do",
   "excerptNote": "Verbatim from Part I (Facts and Procedural History), from formation of the tenant entity through the trial testimony of the landlord's owner and the tenant's principal and flooring contractor. Removed: the introduction stating the judgment amount, the circuit court's rationale for dismissing the alternative counts, the testimony of the architect, project manager and framing contractor (for length), the paragraphs stating the circuit court's post-trial findings and award, and all appellate analysis/holdings. The dollar figures that remain are the landlord's claimed damage components and the lease rent."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the landlord, Park Plaza Properties, LLC, in the Sebastian County Circuit Court (Fort Smith District), Arkansas. A retail tenant that signed a three-year shopping-center lease with personal guaranties never opened, never paid rent and vacated after a demand and notice to vacate; the landlord sued for breach of the lease seeking back rent, its landlord's-work costs, demolition costs and reletting costs, and the tenants counterclaimed that the landlord breached first by failing to deliver working HVAC, bathrooms and sound floors by the effective date. The landlord's alternative unjust-enrichment and promissory-estoppel counts were dismissed on the pleadings, and the competing breach-of-contract claims are set for a bench trial.",
   "documentText": "McKinney and Saul formed Arbor Vitae Corporation to operate a hyperbaric - pressure-treatment business. On January 22, 2022, the parties executed a three -year written lease for Suite 128 at Park Plaza Shopping Center with a monthly rent of $2,355.01 and a stated effective date of February 1, 2022. McKinney and Saul executed personal guaranties. The lease contained a no-oral-modification clause requiring all amendments to be “in writing and signed by the parties.” The lease provided that Park Plaza bore responsibility for the following improvements, referred to as “landlord’s work ,” before the effect ive date of the lease : (1) ensuring the HVAC system was working correctly and replacing filters as needed; (2) checking all plumbing and systems to ensure correct operation; and (3) providing re -key services. Park Plaza was also to maintain the “structural soundness of the floors and walls” in good order and condition. The tenants otherwise accepted the premises “as-is.” On January 28, 2022, Park Plaza’s manager, Brian Carroll, emailed McKinney, stating that construction delays due to COVID material shorta ges made the February 1 date unworkable. Carroll proposed postponing rent and modifying the lease term to March 1, 2022, through February 28, 2025. McKinney responded within the hour , stating, “I appreciate your efforts,” asking about the electrical subpan el, and stating he would get the guaranties notarized. No additional signed written amendment was executed. On February 28, Carroll again emailed McKinney, noting continued delays and proposing two additional months on the back end of the lease term, with no rent due until the bathrooms and power panel were finished, making the start date May 1. McKinney replied: “I was planning to request exactly that so you beat me to the punch. Thank you very much for working with me on this.” Again, no additional signed written amendment was executed. Ultimately, the tenants were unable to open; they acknowledged they never paid rent. On June 28, 2022, Park Plaza demanded the tenants immediately remit three months of unpaid rent. On August 4, 2022, Park Plaza sent a demand letter with notice to vacate. The tenants vacated the premises and signed all necessary permits to Park Plaza.\n\nOn December 8, 2022, Park Plaza filed suit seeking to recover from the tenants’ breach of contract. The tenants counterclaimed, alleging Park Plaza breached the lease when it failed to provide a working HVAC or bathrooms prior to the lease’s effective date. Park Plaza alternatively alleged claims of unjust enrichment and promissory estoppel.\n\nA bench trial was held on January 31, 2025, on the parties’ competing breach-of- contract claims.\n\nCarroll testified that he owns Park Plaza Shopping Center with his wife and that he lives in Virginia. He testified that, according to the lease, he agreed to ensure the HVAC system was working, to ensure correct operation of the plumbing , and to provide re -key services. He also said that he agreed to construct ADA-compliant bathrooms and a mop sink even though this was not explicitly required by the lease. He explained that the City required it before a tenant could occupy a public -facing retail space. He allowed McKinney to select premium tiles and fixtures for the bathrooms. He explained the landlord’s work totaled $107,781.91. Carroll testified that the HVAC units were “fully functioning” but admitted he had not personally been on site to inspect them. His basis for believing they worked was that they were functional when the previous tenant occupied the space eight years earlier. He also said Blaylock Heating and Air had inspected the system in April 2022 and found it to be functional. Carroll maintained that the floors were structurally sound and that ensuring structural soundness—not occupancy readiness—was his only obligation. He denied the floors needed repair under the lease and stated he received no written notice from the tenants about any floor condition. Regarding the amount of damages, he testified he sought $107,781.91 for the amount he expended to complete the landlord’s work; $5,600 .00 in demolition costs to make the space available for viewing by another tenant; $45,736.45 in back rent; and $143,777.60 for costs to relet the space to the neighboring tenant.\n\nMcKinney testified that the business had customers lined up for March 2022 , and they needed to open quickly. McKinney testified that he and his contractor, Mike Johnson, began discussing plans before the lease was signed and that he began framing shortly after the lease was signed.\n\nMcKinney testified that the HVAC system needed more than just ductwork; he stated the HVAC system had no thermostat, making the system “literally not workable.” He stated ductwork was already installed by his own HVAC contractor before Leraris stopped the work and required permits. McKinney testified that the floor “was cracked and had huge areas where it had raised up,” and it had to be ground down to prevent people from tripping over it. He acknowledged that the lease obligated him to provide the landlord with written notice if the landlord had a maintenance obligation but that he never notified Park Plaza of the issue in writing. He said the parties had numerous phone calls about the floor conditions.\n\nDanny Gardener, the flooring contractor, testified that he was hired by McKinney to apply an epoxy floor coating to Suite 128. He described significan t problems with the floor condition. Specifically, he said the concrete had “spalls,” which he described as delamination of the surface cream layer, creating concave pits , and that there were areas where walls had previously been removed, leaving raised se ctions. He testified that given the generally poor condition, the floor required extensive grinding and leveling."
  },
  "outcome": {
   "amount": 51336.45,
   "amountIsTheRequestedAmount": false,
   "date": "2026-09-02",
   "description": "After a bench trial the circuit court found the lease effective date was modified to May 1, 2022, that the landlord did not breach and the tenants did, and entered judgment against the tenants and guarantors jointly and severally for $51,336.45 (back rent of $45,736.45 plus $5,600 demolition costs, each equal to the component the landlord requested), declining the $107,781.91 landlord's-work and $143,777.60 reletting-cost claims; no attorney's fees are mentioned. The court of appeals affirmed the judgment on direct appeal and, on cross-appeal, reversed the denial of reletting costs and remanded for findings on whether the $143,777.60 qualifies as reasonable reletting costs under the lease.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 51336.45,
   "finalNote": "Affirmed; the denial of reletting costs was reversed on cross-appeal and remanded, so the final total could rise."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "island-girl-outfitters-v-allied-development-2025",
  "source": {
   "caseName": "Island Girl Outfitters, LLC, and Anthony S. Carver v. Allied Development of Alabama, LLC",
   "court": "Supreme Court of Alabama (appeal from Baldwin Circuit Court)",
   "docket": "SC-2023-0561 (trial court CV-22-900259)",
   "decided": "2025-03-21",
   "url": "https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/33D15128-6DDF-4F60-8D72-8ABE96948EE3/docketentrydocuments/B04FE86F-1EB1-49BD-A1C7-EEC074DC3688",
   "excerptNote": "Excerpts from the opinion's introduction, 'Facts and Procedural History', and the parties' contentions as restated in the 'Analysis' section. Removed: the introductory sentence stating the judgment amount, the sentences describing the trial court's partial summary judgment on liability and the later damages judgment, the sentence restating the damages award in the mitigation argument, and all appellate holdings/affirmance language."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent Allied Development of Alabama, LLC, the landlord-owner of Eastern Shore Centre, an outdoor shopping mall in Spanish Fort, Alabama, in a breach-of-lease suit in the Baldwin Circuit Court against a retail tenant (Island Girl Outfitters, LLC) that vacated a 2,100-square-foot storefront after the first year of a five-year lease, and against its owner as personal guarantor. The landlord seeks future rent and other damages under the lease's default provision; the tenant contends the landlord failed to market and maintain the mall and that the landlord relet the space to an existing tenant within a month, so little or no future rent is owed. Liability has been resolved by partial summary judgment and the court has set an ore tenus damages hearing.",
   "documentText": "Allied Development of Alabama, LLC, owns Eastern Shore Centre, an outdoor shopping mall in Spanish Fort. Island Girl Outfitters, LLC (\"IGO\"), operated a store there known as Hippie Gurlz, but closed it after the first year of its five-year lease. Allied Development then filed a complaint in the Baldwin Circuit Court, seeking rent and other damages that were due under the lease.\n\nIn late 2020, IGO entered into a five-year lease with Allied Development for a 2,100-square-foot storefront in Eastern Shore Centre. Under the terms of the lease, IGO was obligated to pay Allied Development a base monthly rent of $3,000 (with escalators at the beginning of years two and four). Carver signed the lease on behalf of IGO and executed a separate guaranty agreement requiring him to personally make any payments that IGO failed to make.\n\nIGO took possession of the leased storefront in January 2021 and opened Hippie Gurlz, a store selling ladies' apparel and accessories, home goods, and related products. But sales were slower than expected, and, by the end of the year, IGO had decided to close the store. IGO vacated the premises at the end of January 2022. Shortly thereafter, another tenant at Eastern Shore Centre moved its existing store to the former Hippie Gurlz location.\n\nIGO's lease provided that, if it vacated the premises, it would immediately become liable for damages, including future rent owed under the lease and expenses incurred by Allied Development in connection with the default. Six weeks after Hippie Gurlz closed, Allied Development filed a breach-of-contract action against IGO and Carver to enforce that provision.\n\nAllied Development later moved for summary judgment, arguing that it was undisputed that IGO had breached the lease and that, under the terms of the lease and the guaranty agreement, IGO and Carver owed it $89,010 for rent, interest, costs, and fees. Allied Development supported its motion with copies of the lease and the guaranty agreement, along with an affidavit from its employee, Alton Hankins, describing IGO's tenure at Eastern Shore Centre and stating the amount it owed for the remainder of the lease term.\n\nIGO and Carver opposed the summary-judgment motion. They first argued that they had closed Hippie Gurlz only because Allied Development had failed to properly market and maintain Eastern Shore Centre. Next, they argued that they should not be liable for any future rent owed under the lease because Allied Development had relet the former Hippie Gurlz storefront only a month after they vacated the premises. Finally, they noted that Allied Development had not provided an itemization of the $89,010 in damages it was claiming.\n\nAllied Development then submitted another affidavit from Hankins explaining that it had convinced an existing tenant to move into the Hippie Gurlz storefront because it was a prominent location that Allied Development did not want to remain vacant. But, Hankins noted, that tenant's former location had remained vacant since the move. Hankins further provided a more detailed explanation for the damages Allied Development was claiming, which now totaled $146,910.\n\nIGO and Carver state that they submitted evidence to the trial court showing that Allied Development made only minimal efforts to advertise Eastern Shore Centre and that the mall was generally unkempt and in a state of disrepair. Thus, they argue, there were genuine issues of material fact about Allied Development's own performance under the lease -- and, specifically, whether IGO breached the lease -- that should have precluded the trial court from entering summary judgment on the issue of liability.\n\nAcknowledging the lower rent that this new tenant was obligated to pay under its lease, IGO and Carver argue that they should be liable for no more than $18,900 in damages."
  },
  "outcome": {
   "amount": 94350,
   "amountIsTheRequestedAmount": false,
   "date": "2025-03-21",
   "description": "After a damages hearing, the Baldwin Circuit Court rendered judgment for the landlord in the amount of $94,350 plus costs of court against the tenant and guarantor (the landlord had claimed $89,010 in its summary-judgment motion and later $146,910; the tenant argued for no more than $18,900). Attorney's fees were not separately stated. The Supreme Court of Alabama affirmed both the liability determination and the damages judgment.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 94350,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "lbj-venture-v-kolaj-2025",
  "source": {
   "caseName": "202 N LBJ Venture Group, LP v. Paul Kolaj and Modesta Kolaj",
   "court": "Texas Court of Appeals, Third District (Austin), on appeal from the 207th District Court of Hays County",
   "docket": "03-24-00025-CV (trial court No. 21-2211)",
   "decided": "2025-03-06",
   "url": "https://search.txcourts.gov/SearchMedia.aspx?MediaID=3dc5c03e-76a9-498d-bcef-1d32d7bb3e03",
   "excerptNote": "Verbatim from the BACKGROUND section (lease terms, default letter, pleadings, partial summary judgment on liability, bench trial on damages, each side's damages position) plus footnotes 1-2 and one evidence paragraph from the Discussion describing the landlord witness's testimony on the commercial kitchen. Removed: the opinion's introductory paragraph, the sentence stating the amount the trial court rendered judgment for and its $0 fee award, all appellate holdings, and the attorney's-fee discussion. Note that the tenant's own proposed judgment figure is retained as a party contention."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent 202 N LBJ Venture Group, LP, the landlord of a mixed-use commercial and residential building in downtown San Marcos, Texas, suing its restaurant tenant Paul and Modesta Kolaj for breach of a ten-year commercial lease in the 207th District Court of Hays County. The tenant defaulted within the first year; the landlord terminated possession but not the lease and relet the space. Liability has been resolved by partial summary judgment (the tenant did not contest breach), and the case is set for a bench trial on damages and attorneys' fees, with the parties disputing whether the lease permits acceleration of the full remaining rent and whether the $300,000 tenant-funded commercial kitchen commitment is recoverable.",
   "documentText": "LBJ Venture owns a mixed-use commercial and residential building located in downtown San Marcos. In February 2021, LBJ Venture and Kolaj executed a commercial lease for approximately 1,400 square feet of space in the Property (the Leased Premises). The lease permitted Kolaj to use the Leased Premises for the operation of a restaurant. In June 2021, LBJ Venture and Kolaj executed an amendment to the lease. The amendment added an additional 570 square feet in the building (the Additional Leased Premises) to the lease and increased the monthly rent to reflect the additional square footage. The amendment provided that the amended lease’s effective date was June 7,2021; set the Rent Commencement Date as January 1,2021, for the Leased Premises and August 1,2021, for the Additional Leased Premises; and abated the base rent for the Leased Premises, but not the Additional Leased Premises, until September 1,2021.\n\nRelevant to this appeal, the lease provided that: Tenant agrees to install in the Premises a commercial kitchen, with such commercial kitchen being constructed and installed in accordance with all local, state, and federal health, safety, fire, and building codes. Tenant agrees and represents to Landlord that such improvements, including the equipment therefor, is estimated to be valued at $300,000, and that such representation by Tenant to Landlord is a material representation and consideration for Landlord entering into this Lease with Tenant.\n\nSection 10.02(b) of the lease provided that, in the event of default, LBJ Venture had the option to:\n\nterminate Tenant’s right of possession (but not this Lease) and may repossess the Leased Premises by forcible entry or detainer suit or otherwise, without demand or notice of any kind to Tenant and without terminating this Lease, in which event Landlord may relet the Leased Premises for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord, in Landlord’s sole and absolute discretion. [] If Landlord does not relet the Leased Premises, then Tenant shall pay to Landlord as damages a sum equal to the amount of the Rent and all other sums due hereunder, plus the cost of recovering possession of the Leased Premises, plus interest on all of the foregoing at the Past Due Rate.\n\nThe lease included a provision requiring both LBJ Venture and Kolaj to “use commercially reasonable efforts to mitigate any damages resulting from a default of the other party under this Lease.”\n\nIn November 2021, LBJ Venture sent Kolaj a letter informing him that due to his default of the lease, it was exercising its right, under section 10.02(b) of the lease, to terminate Kolaj’s possession of the leased premises, but not the lease, and to take possession of the leased premises and attempt to relet them.\n\nLBJ Venture filed its original petition against Kolaj, asserting a cause of action for breach of contract and requesting an award of attorneys’ fees pursuant to both Texas Civil Practices and Remedies Code section 38.001 and section 12.01 of the lease.\n\nAt a hearing on the motion for partial summary judgment, the parties confirmed that Kolaj was not contesting liability and that the only remaining issues were the amount of damages and attorneys’ fees.\n\nOn November 2,2022, the trial court conducted a bench trial on the issue of damages to which LBJ Venture was entitled under the lease. After trial, LBJ Venture moved for judgment in the amount of approximately $538,000 in unpaid rent; $300,000 that Kolaj agreed to spend to install a commercial kitchen in the leased premises; and $67,000 in attorneys’ fees. LBJ Venture took the position that it was entitled to “accelerate” the rent due under the lease and obtain a judgment in an amount equal to the rent that would be due over the course of the ten-year lease. LBJ Venture also maintained that it was entitled to the $300,000 that Kolaj had agreed to spend to install a commercial kitchen. Kolaj countered that section 10.02(b) of the lease did not permit LBJ Venture to accelerate rent but, instead, provided that LBJ Venture could collect unpaid rent as it became due under the lease, relet the premises “for the account of [Kolaj],” and recover from Kolaj any deficiency between the rent due under the lease and the rent obtained from reletting the premises. Kolaj argued that under section 10.02(b), LBJ Venture could demand any such deficiency from Kolaj “from time to time” and could file suit to recover those amounts due “from time to time.” Kolaj maintained that, in this suit, LBJ Venture was entitled to a judgment in the amount of $96,072.49, composed of (1) $78,739.31 in unpaid rent from the Rent Commencement Date through the time of trial, offset by the amount of rent received by the new tenants in the Leased Premises and the Additional Leased Premises; (2) $3,469.43 in late fees; and (3) $13,863.75 in pre-judgment interest.\n\nLBJ Venture stated that it would offset that amount by the approximately $120,000 it expected to generate from two leases it entered into that covered the Leased Premises and the Additional Leased Premises for terms of one year and three years, respectively. LBJ Venture did not include as an offset any other amounts it might generate from future leases of either the Leased Premises or the Additional Leased Premise.\n\nAt trial, Kolaj’s counsel attempted to elicit testimony from LBJ Venture’s sole witness regarding the value of a ten-year-old commercial kitchen. LBJ Venture’s witness was unable to provide any testimony regarding what the value of the kitchen would have been at the end of the lease term. Nor was LBJ Venture’s witness able to opine as to whether, or to what extent, the presence of a commercial kitchen would have enhanced the value of the Leased Premises."
  },
  "outcome": {
   "amount": 96072.49,
   "amountIsTheRequestedAmount": true,
   "date": "2025-03-06",
   "description": "After the bench trial the trial court rendered judgment for the landlord of $96,072.49 (unpaid rent through trial net of replacement-tenant rent, late fees, and prejudgment interest) — the figure the tenant advocated, roughly one-tenth of the more than $900,000 the landlord sought — plus 18% post-judgment interest, and awarded $0 in attorneys' fees. The court of appeals affirmed the damages award and reversed only the denial of attorneys' fees, remanding for a determination of a reasonable fee under the lease.",
   "attorneysFeesAtTrial": 0,
   "appellateChange": "affirmed",
   "finalAmount": 96072.49,
   "finalNote": "Damages affirmed; fee denial reversed and remanded."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "hurt-v-caton-2025",
  "source": {
   "caseName": "Charles W. Hurt and Shirley L. Fisher, as Trustees of the South Pantops II Land Trust v. Douglas E. Caton",
   "court": "Court of Appeals of Virginia (published), on appeal from the Circuit Court of Albemarle County",
   "docket": "Record No. 1198-23-2",
   "decided": "2025-03-04",
   "url": "https://www.vacourts.gov/opinions/opncavwp/1198232.pdf",
   "excerptNote": "Verbatim from the opinion's introduction (dispute summary and the parties' cross-motion positions), the BACKGROUND section (Agreement terms, development plans and adverse-possession suit, fifth amendment, termination and demand letters, the suit and cross-motions), footnotes 2-3, and the first paragraph of the Analysis summarizing each side's contention. Removed: every sentence describing the circuit court's ruling, its damages and fee award, and the appellate holdings, including the standard-of-review section."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": true,
   "description": "We represent Douglas E. Caton, a developer who held an exclusive option to ground lease and then purchase a 13.12-acre parcel in Albemarle County, Virginia, for a multifamily development, in his one-count breach-of-contract suit against the land trust that owns the parcel, filed in the Circuit Court of Albemarle County. Caton terminated the option agreement during a neighboring HOA's adverse-possession suit against the trust without ever exercising the option, and demands return of his option consideration and out-of-pocket diligence expenses under the agreement's liquidated-damages clause; the trust contends its obligations never ripened because the option was never exercised. The parties have filed cross-motions for summary judgment, with Caton's damages evidence coming from deposition testimony.",
   "documentText": "The Trust owns a piece of real property in Albemarle County that is approximately 13.12 acres. Charles Hurt and Shirley Fisher are the trustees of the Trust. Caton was interested in the land and had an eye toward developing it. The parties entered into the Agreement, giving Caton an “exclusive and irrevocable option” to rent, and ultimately purchase, the property if the option was exercised.\n\nOn August 7,2017, Caton and the Trust, through its trustees Hurt and Fisher, entered the Agreement, giving Caton the option to rent, and then purchase, the Trust’s 13.12-acre parcel of real property. Caton paid the Trust $10,000 per month for this option, and the Trust was precluded from selling to anyone else.\n\nThe Agreement provided that if Caton exercised the option and the Ground Lease went into effect, then Caton was required to purchase the property thereafter. Section 1(b) of the Agreement provided, in relevant part, that: The commencement date of the Ground Lease (the “Ground Lease Commencement Date”) shall be the date which is thirty (30) days after the date Lessee [Caton] exercises the Option in accordance with Section 2(a), unless an earlier date is agreed upon by the parties. It shall be a condition precedent to the Ground Lease Commencement Date that as of such date (a) the Property shall be free and clear of all liens and other encumbrances except for . . . (iv) other easements and restrictions of record as would not materially and adversely affect the development of the Property for multi-family residential use[.]\n\nSection 9 of the Agreement, entitled “Liquidated Damages” states, in pertinent part, as follows: In the event that (a) the Option cannot be consummated because of a failure of one or more conditions set forth in Section 1, or (b) Lessor [the Trust] materially breaches its obligations under this Agreement, Lessee [Caton] may terminate this Agreement by written notice to Lessor [the Trust], and Lessee [Caton] shall be entitled to immediately receive a refund of the Option Consideration, plus all out-of-pocket expenses incurred by Lessee [Caton] in connection with Lessee’s [Caton’s] diligence pursuant to Section 2(b), as liquidated damages, and neither party shall have any further obligation hereunder, except for such obligations as expressly survive the termination hereof.\n\nThe Agreement stated that Caton “intends to evaluate the development potential of the Property” and “[d]uring the term of the Ground Lease, [Caton] intends to develop and construct on the Property a multifamily residential community.” In 2018, during the option period, Caton, through Management Services Company, hired Jim Taggart to prepare a site plan for a multifamily housing development and to develop construction drawings. Abutting the Trust’s property is a residential community (“Overlook”). In August 2019, while the option remained open, the Overlook Homeowners Association of Pantops filed a lawsuit against the Trust, asserting ownership via adverse possession of a small portion of the Trust’s property that Overlook allegedly had used as a walkway for several years. The disputed land impacted Taggart’s proposal since it was near a proposed building. Later in 2019, Caton asked Taggart to develop additional proposals, in light of the adverse possession litigation. Taggart developed seven alternative plans.\n\nThe option period was originally for a period of five months, and at a cost of $10,000 per month paid by Caton to the Trust. The option was extended through March 31,2021, via seven amendments.\n\nBy the time of the fifth amendment, however, Overlook had initiated the adverse possession litigation against the Trust.\n\nThe recital to the fifth amendment explained that “an adverse possession dispute” was ongoing between the Trust and the Overlook Homeowners Association; as a result, if Caton “were to exercise the Option, the conditions precedent to the commencement date of the Ground Lease set out in § 1(b) of the Agreement would not be satisfied.” The recital also noted that the adverse possession litigation “may not be resolved prior to the end of the Option Period” that was set to expire on January 31,2020. Caton and the Trust agreed to “extend the Option Period” and “adjust the Option Consideration” in light of the adverse possession litigation.\n\nOn March 29,2021, two days before the option period was set to expire, Caton, through his attorney, sent a letter to the Trust with the subject line, “Termination of Option to Ground Lease.” Caton suggested that he was terminating the Agreement pursuant to § 9(a). Caton argued that due to the adverse possession litigation “the conditions precedent set out in Section 1(b) . . . cannot be satisfied, and the Option cannot be consummated.” Caton demanded “an immediate payment in the amount of $442,885.50 which constitutes a refund of $314,000.00 in Option Consideration, plus $128,885.50 in out-of-pocket expenses . . . .” On August 12,2021, Caton, through his attorney, sent a subsequent letter to the Trust with the subject line, “Termination of Payment Demand.” The letter explained that “Lessee [Caton] terminated the Agreement based on [the Trust’s] inability to satisfy the conditions precedent set out in Section 1(b) of the Agreement.” Caton argued that he was thus entitled to damages under § 9 of the Agreement. Caton warned that if his payment demand was not fulfilled by September 1,2021, then he would file suit for breach of contract. The Trust refused to pay.\n\nCaton alleged that the Trust breached the Agreement. The Trust responded that it did not breach the Agreement—and if Caton actually had exercised the option, triggering the thirty-day period to cure any defects, the Trust could have met the requirements. The Trust reasons that since the option was never exercised, the obligation to provide the land free of liens and encumbrances never arose—so no damages could be available for a breach."
  },
  "outcome": {
   "amount": 442885.5,
   "amountIsTheRequestedAmount": true,
   "date": "2025-03-04",
   "description": "The circuit court granted Caton summary judgment on a futility theory and awarded him $442,885.50 in damages (the full amount of his demand) plus $96,329.00 in attorneys' fees. The Court of Appeals of Virginia affirmed that the agreement required Caton to exercise the option, but reversed the summary judgment award of damages and fees because futility was not established as a matter of law, and remanded for further proceedings.",
   "attorneysFeesAtTrial": 96329.0,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Summary judgment reversed and remanded; no final figure yet."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes"
 },
 {
  "id": "edgemere-lawal-2025",
  "source": {
   "caseName": "Edgemere Loop 375, LLC v. Lookman Lawal, M.D., and Southwestern Cardiac Arrhythmia Institute, P.A.",
   "court": "Court of Appeals of Texas, Eighth District (El Paso)",
   "docket": "No. 08-24-00092-CV (appeal from 205th District Court, El Paso County, TC# 2020DCV2771)",
   "decided": "2025-05-27",
   "url": "https://search.txcourts.gov/SearchMedia.aspx?MediaID=1da0b877-43f9-4d95-99b6-7609f934dace",
   "excerptNote": "Excerpts from Part I (Factual Background; the 'To summarize' paragraph, the title-company/attorney-retention paragraph and the May 29 letter quotation omitted for length), Part II (Procedural Background) and the parties' contentions quoted in Part IV (Analysis, incl. footnote 5). Removed: the jury's findings and the trial court's final judgment (all award figures), the appellate holdings, the attorney's-fee testimony figure, and the disposition. Whitespace normalized only."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": true,
   "description": "We represent the tenant, cardiologist Dr. Lookman Lawal and his practice, Southwestern Cardiac Arrhythmia Institute, P.A., sued in the 205th District Court of El Paso County, Texas by their former landlord, Edgemere Loop 375, LLC, for breach of a renewed three-year commercial medical-office lease after the tenant moved out early following the landlord's written notice to vacate. The tenant has counterclaimed for constructive eviction, breach of the implied warranty of quiet enjoyment, and breach of contract for failure to return the security deposit, seeking lost profits, the cost of setting up a new office, return of the deposit, and attorney's fees. The case is set for a four-day jury trial.",
   "documentText": "Lawal is a cardiologist and owns his own practice, Southwestern Cardiac Arrhythmia Institute. In October 2015, Lawal rented office space in El Paso from Edgemere, through its managing member Javier Reyes. The lease expired in 2018, and the parties disagree about when the renewed three-year lease was signed. Lawal says that he met with Reyes on October 10, 2018, and signed the lease that day. Reyes testified that Lawal took the lease home to review it and that Lawal did not return a signed copy until after he gave Lawal a notice to vacate. Regardless of when the lease was signed or returned, Lawal continued to pay rent every month at the increased amount under the new lease through February 2020, when he moved out of the property.\n\nIn November 2018, Reyes began negotiations with another doctor, Dr. Granados, to sell the property to him. In early January 2019, Reyes also met with Lawal to discuss selling the building to him and contracts for sale were sent to Lawal to review on January 8 and 9. However, the following day, on January 10, Reyes decided to sell to Granados. According to Reyes, he did not believe any lease was in effect at this time because Lawal had not returned it with his signature. On January 11, 2019, Reyes sent a letter to Lawal that revoked the offer to sell and terminated the lease. Because the correspondence between the parties is at the heart of their dispute, we find it necessary to quote it at length.\n\nIn the January 11 letter, Reyes stated: I am writing to inform you that although we have had discussions with regards to your purchase of the property..., I am not going to continue with the execution of a contract to sell that property to you. It is not my intent to give you the impression that I am trying to renegotiate or engage in further negotiations of any sort. I am selling the property, but not to you. The party to whom I will sell the property is intending to close and take possession of the property as of June 1, 2019 and a part of our contract agreement is that the property will be vacant by that date. Please accept this letter as my notice to you that you must vacate the property prior to June 1, 2019.\n\nOne week later, on January 18, 2019, Lawal responded. He did not contest the termination of the lease but asked for additional time to move. He wrote: Please be apprised that we recently signed a 3-year contract on 10/10/2018, terminating in 2021.... Please be advised that the June 1st date given to vacate the... property is not feasible. I have been renting the property for 3 years and I currently have close to seven thousand patients in the area. Such a drastic move at such a short notice would jeopardize my patients’ health care and put several patients at risk. I would like you to consider extending my vacation date to the end of December 2019. This would give me enough time to find a new office space, inform my patients and insurance companies about the impending relocation and ensure a smooth transition.\n\nOn March 6, 2019, Lawal’s attorney sent a letter to Reyes with a copy of the lease that advised as follows: Please note that it is Dr. Lawal’s good faith and lawful assertion that the attached Lease, executed on October 10, 2018... remains enforceable and in effect through May 31, 2021. Reyes claims that the first time he received the lease with Lawal’s signature was sometime between the January 31 and March 6 letter, and that once he was aware that the lease was in effect, he contacted Granados and the title company and canceled the sale. But, again, Reyes did not respond to Lawal’s letter or otherwise let him know that he canceled the contract with Granados and retracted the notice to vacate.\n\nAs Lawal said he would in his May 29, letter, Lawal completely vacated the property before the end of February 2020 and notified Edgemere by letter. On March 2, 2020, Lawal’s attorney requested the return of Lawal’s security deposit. Edgemere did not return the security deposit, but instead applied it to March’s rent. Edgemere alleged that once Lawal moved out, he was unable to find a renter or buyer until November 2020.\n\nEdgemere filed suit against Lawal and Southwestern for breach of contract. It sought rent for the nine months between Lawal’s vacating the property and the sale of the property, late fees under the lease (10% per month plus $50 a day), and attorney’s fees. Lawal responded by filing counterclaims for constructive eviction, breach of implied warranty of quiet use and enjoyment, and breach of contract for failure to return the security deposit. He requested damages for lost profits, expenses of setting up his new office, the return of his security deposit, and attorney’s fees.\n\nLawal contends that Reyes’s January 11 letter giving him notice to vacate substantially interfered with his use of the property. He testified that he could not use the property to its full extent because after he received the notice, he was “confused” and “panicked” and that it caused a “substantial disruption” in his practice because he could not focus on his patients. Because he was distracted and worried, Lawal said, he could not see his usual number of patients a day and had to cancel complex surgical procedures.\n\nLawal agreed that Edgemere did not lock him out, physically block access to the building, or turn off electricity.\n\nAfter Lawal left the property, he requested the return of his security deposit. Edgemere agrees that it refused to return it but argues that it was justified in retaining it to cover rent after Lawal moved out.\n\nAt trial, Edgemere argued that another reason he retained the deposit is that Lawal damaged the floors, and it cost more than $5000 to repair. It did not produce any evidence of these costs, and it abandons this argument on appeal."
  },
  "outcome": {
   "amount": 83791.8,
   "amountIsTheRequestedAmount": false,
   "date": "2025-05-27",
   "description": "The jury found for the tenant on all claims and the trial court entered judgment for $36,791.80 moving expenses, $42,000 lost profits and $5,000 for the retained security deposit (total $83,791.80), plus $67,000 attorney's fees, interest and costs, and took-nothing on the landlord's rent claim. The court of appeals reversed the constructive-eviction/implied-warranty recovery (no evidence of substantial interference) and rendered judgment that the tenant take nothing on those claims, affirmed the judgment against the landlord on its breach claim and for the tenant on the $5,000 security-deposit claim, and remanded attorney's fees for a new trial.",
   "attorneysFeesAtTrial": 67000,
   "appellateChange": "modified to $5,000",
   "finalAmount": 5000,
   "finalNote": "Reduced on appeal to the $5,000 security deposit."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes"
 },
 {
  "id": "four-elyria-brexton-2025",
  "source": {
   "caseName": "Four Elyria Co., L.L.C. v. Brexton Constr., L.L.C.",
   "court": "Court of Appeals of Ohio, Ninth Appellate District (Lorain County)",
   "docket": "C.A. No. 24CA012089, 2025-Ohio-1778 (appeal from Lorain County Court of Common Pleas, Case No. 17CV192092)",
   "decided": "2025-05-19",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2025/2025-Ohio-1778.pdf",
   "excerptNote": "Excerpts from Part I (facts and pleadings, ¶¶3, 5-9; ¶6 truncated before the quoted lien-waiver language) and the deposition testimony of both sides summarized in the partial dissent (¶¶56, 58). Removed: ¶4 (plan disclaimers), ¶10 (motions), the trial court's summary-judgment rulings (¶¶11-13, 16), the jury verdict figure, post-verdict motions, the first appeal's disposition, and all appellate holdings. Whitespace and PDF page-number artifacts normalized only."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": true,
   "description": "We represent Brexton Construction, LLC, the construction manager for the Chestnut Commons retail plaza in Elyria, Ohio, which has been sued in the Lorain County Court of Common Pleas by the owner, Four Elyria Company, LLC, for breach of contract, fraud and slander of title after Brexton and its subcontractors recorded mechanic's liens for unpaid site-specific Petco tenant-improvement work that Brexton says was outside the guaranteed-maximum-price contract. Brexton has counterclaimed for breach of contract, unjust enrichment, declaratory judgment and foreclosure of its mechanic's lien. Cross-motions for summary judgment are pending, with any damages to be tried to a jury.",
   "documentText": "{¶3} Four Elyria sought to build a shopping plaza on commercial real estate property it owned in Elyria. The plaza would be named Chestnut Commons. It would consist of four leased retail stores, one of which would be a Petco. Four Elyria hired an architect (“the Architect”) to design the project and a construction manager to oversee its construction. Brexton is the construction manager Four Elyria hired.\n\n{¶5} Brexton sent Four Elyria pricing information for the construction of Chestnut Commons. The tendered price was termed the guaranteed maximum price (“GMP”). The parties then executed a GMP contract (“the Contract”). The Contract and its attachments defined the scope of work and total price for the Chestnut Commons project. Per the Contract, Brexton would be “responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with this Agreement.” “Work” was a defined term under the Contract. The Contract addressed potential changes to the Work that might impact the GMP. It required any such changes to be formalized by Change Order.\n\n{¶6} Several months after the parties executed the Contract, Four Elyria sent Brexton additional drawings. The drawings, designed by Petco’s architects, were for site-specific tenant improvement work at the Petco in Chestnut Commons (“the Site-Specific Work”). Brexton accepted the drawings. It substantially completed Chestnut Commons, including the Site-Specific Work, by November 2016. In late November, Brexton submitted two pay applications to Four Elyria. The first was for the balance due under the Contract. The second was for the retainage. Each pay application included an unconditional waiver and release of liens. It is undisputed that Four Elyria paid Brexton the GMP under the Contract.\n\n{¶7} After Four Elyria paid Brexton, Four Elyria learned that several of Brexton’s subcontractors had not been paid for work they performed in connection with the Site-Specific Work. Brexton then contacted Four Elyria directly and demanded further payment. It became clear that the parties did not agree as to whether the Site-Specific Work was part of the Contract. According to Four Elyria, that work was part of the Contract and there were never any discussions about it causing an increase in the GMP. According to Brexton, the Site-Specific Work was never part of the Contract and Four Elyria specifically instructed it not to submit a Change Order for the work because Four Elyria did not want its lender to learn of the additional cost. Brexton expected Four Elyria to pay it separately for the Site-Specific Work, which amounted to almost $500,000. The unresolved dispute led Brexton and several of its subcontractors to file mechanic’s liens against Chestnut Commons.\n\n{¶8} Four Elyria filed suit against Brexton and two of its officers. Its complaint included causes of action for breach of contract, fraud, and slander of title. Four Elyria alleged that Brexton breached the Contract by failing to pay its subcontractors. Four Elyria further alleged that Brexton committed fraud when its officers, to secure final payment from Four Elyria, executed unconditional releases and lien waivers with knowledge that Brexton and its subcontractors intended to seek more money from Four Elyria. Finally, Four Elyria alleged that Brexton slandered its title by filing a lien for money Brexton knew it was not owed.\n\n{¶9} Brexton and its officers answered the complaint and filed counterclaims against Four Elyria. The counterclaims were for breach of contract, unjust enrichment, declaratory judgment, and foreclosure of its mechanic’s lien. Brexton alleged that Four Elyria breached the Contract by failing to pay it in full for the Site-Specific Work. Alternatively, Brexton alleged that it was entitled to payment from Four Elyria under a theory of unjust enrichment. Brexton also asked the court to declare its lien valid and order foreclosure.\n\n{¶56} Mr. Galvin testified that Four Elyria promised to pay Brexton additional money for the Site-Specific Work. It was his understanding that Four Elyria and Brexton entered into a separate, oral contract wherein Brexton promised to perform the Site-Specific Work and Four Elyria promised to pay for that work separately. Yet, it was also his testimony that Brexton prepared a Change Order for the Site-Specific Work. He testified that Four Elyria verbally instructed Brexton not to submit the Change Order because it did not want its lender to know the Project had gone over budget. He testified that Four Elyria repeatedly gave assurances it would pay for the Site-Specific Work with funds from another source. Mr. Galvin testified that Brexton had other construction contracts with Four Elyria. Those contracts also contained change order provisions. According to Mr. Galvin, Four Elyria had paid for additional work on those other contracts without requiring written change orders.\n\n{¶58} Grant Giltz, part owner of Four Elyria, testified as its Civ.R. 30(B)(5) witness. Mr. Giltz indicated that other members of Four Elyria handled its legal work and were the primary point of contact between Four Elyria and Brexton. He testified that his contact with Brexton was limited. According to Mr. Giltz, Brexton’s representative acknowledged Brexton was having trouble paying its subcontractors but assured Four Elyria those issues would be resolved. He testified that Brexton’s representative mentioned additional costs a few times but never specifically attributed them to Petco. Mr. Giltz was not aware of any discussion wherein Four Elyria promised to pay Brexton separately for the Site-Specific Work or instructed Brexton not to submit a Change Order. He testified that he could not speak directly for other members of Four Elyria but had never personally told Brexton not to submit the additional costs. It was Mr. Giltz’ position that the Site-Specific Work was always part of the Contract and the GMP."
  },
  "outcome": {
   "amount": 465417.44,
   "amountIsTheRequestedAmount": false,
   "date": "2025-05-19",
   "description": "The trial court held the Site-Specific Work was outside the contract, granted summary judgment against Four Elyria on all its claims and for Brexton on unjust enrichment, and after a damages-only jury trial entered judgment for Brexton for $465,417.44; both sides' attorney-fee motions were denied and Brexton's lien-foreclosure counterclaim was dismissed. On this second appeal the court of appeals agreed the work was outside the contract but reversed in part and remanded for the trial court to apply the contract's Article 9 change-order provisions, leaving the unjust-enrichment award and the fee issues to be revisited on remand.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Reversed in part and remanded; no final figure yet."
  },
  "expectedRole": "Contractor / Design Professional",
  "category": "construction-defect"
 },
 {
  "id": "721-st-charles-crd-2025",
  "source": {
   "caseName": "721 St. Charles, LLC v. Gibbs Residential, LLC and Commercial Realty Developers, LLC",
   "court": "Louisiana Court of Appeal, Fourth Circuit",
   "docket": "No. 2024-CA-0603 (appeal from Civil District Court, Orleans Parish, No. 2020-08628, Div. F-14)",
   "decided": "2025-05-08",
   "url": "https://www.la4th.org/opinion/2024/4940183.pdf",
   "excerptNote": "Excerpts from 'Factual Summary and Procedural History' (through the pre-trial settlement with Gibbs), the trial testimony of Boes and Montagnet summarized under 'Breach of Clause 13', and the lease's Clause 13. Removed: footnote 3 (the S and P Parking lease), the Lauren Gibbs deposition excerpt, Clauses 18-19, the trial court's liability finding and damages/fee awards, the appellate court's findings on manifest error, solidarity, virile share and attorney's fees, and the disposition. Footnote markers and page artifacts stripped; whitespace normalized."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent 721 St. Charles Ave. LLC, owner of a commercial parking lot at 721 St. Charles Avenue in New Orleans, suing in Orleans Parish Civil District Court for breach of two successive leases under which the lot served as the staging ground for construction of the adjacent 731 St. Charles condominium building. The original tenant/general contractor, Gibbs Residential, LLC, settled and was released before trial; the remaining defendant, Commercial Realty Developers, LLC, took over the lease and agreed in a handwritten addition to the repair clause to be responsible for damage from the Gibbs period. We seek our repair costs, lost profits from a third-party parking operator's lease, attorney's fees and interest; the case is set for a one-day bench trial.",
   "documentText": "At issue is a contract dispute between the owner of 721 St. Charles Ave. (“721”) and two companies, Gibbs Residential, LLC (“Gibbs”) and Commercial Real Estate Developers, LLC (“CRD”). On February 18, 2018, Gibbs signed a standard form contract that exclusively leased 721 (“The Gibbs Lease”) to serve as a staging ground for the construction of a condominium building on the adjacent 731 St. Charles Ave. Steve Montagnet is a principle owner of 731 St. Charles Ave. LLC (“731”).\n\nThe standard form Lease was confected by 721. The Lease contained a damages and repairs provision, (“Clause 13”) that stated: 13. REPAIR AND MAINTENANCE. Tenant shall, at its expense, repair all damage caused by Tenant’s employees and invitees, maintain striping, and perform routine custodial services to keep the surfaces within the Premises (if any) in a clean condition. All other maintenance, repair and/or replacement of or on the Premises shall be promptly and diligently performed by Tenant at Tenant’s expense, so that the Premises shall be in good condition and repair at all times and in compliance with the Americans with Disabilities Act of 1990. Tenant shall specifically maintain the parking surface of the Leased Premises and return it to the Landlord in the condition received at the commencement of the Lease.\n\nGibbs failed to complete the construction project in a timely manner preventing a third-party parking company, S and P Parking (“SP”), from taking possession of 721. Gibbs was discharged from the 731-construction project and ceased use of 721 on or around December 1, 2019.\n\nThe owner of 731, Steve Montagnet, arranged for his company CRD to take over the Gibbs Lease in order to prevent project delays. CRD entered into a Lease with 721 on December 1, 2019, which was extended through June 30, 2020 (“CRD Lease”). The CRD Lease was almost identical to the Lease signed by Gibbs, with the exception of a hand-written provision inserted under Clause 13, added by the owners of 721 and agreed to by CRD. The distinction bound CRD to be responsible for any damages caused by their possession of 721 and to repair damages caused by Gibbs’ possession. The addition to Clause 13 stated: “This shall apply to Gibbs Residential LLC & damage applicable to [its] use up until 12/19 and throughout previous use of lot and drive.”\n\nDamages caused during Gibbs’ possession included a removal of an electrical pole that fed power to light fixtures, damaged and destroyed brick pavers, removal of underground wiring and removal of electrical boxes. There was extensive damage to the lot’s asphalt surface and striping paint. Gibbs did not make, nor was it asked, to make any repairs on the lot after termination from the 731 job or the cessation of its possession of 721.\n\nAt the end of its 721 possession, CRD performed patch work repairs on the asphalt surface and restriped parking lines. CRD did not address any of the aforementioned damages caused by Gibbs. An owner of 721, Craig Boes (“Boes”) repined that the work done by CRD was inadequate to return the lot to pre-Gibbs condition and hired an outside company to repair the damages at the expense of $106,077.89. Repairs included complete asphalt resurfacing.\n\nOn October 9, 2020, 721 filed suit for breach of contract naming Gibbs and CRD as joint defendants. It avers that 721 was not returned to proper condition and sought repair damages, lost profits from the SP Lease, attorney’s fees, and post judgment interest. Gibbs settled claims with 721 prior to the one-day bench trial held on February 20, 2024, releasing it from all claims without prejudice.\n\nBoes believed that the asphalt patch work job done by CRD was not sufficient to return the lot back to its intended use. In his testimony, Boes explained in detail that the repairs 721 made were necessary to return the lot to pre-Gibbs form, to comply with the Americans with Disabilities Act of 1990. Further, that asphalt work done by CRD was “quilt patched, scarred and dented” and not a consistent finish that was present before Gibbs took possession. As a result, its surface was conducive to water retention. Boes contended that other physical elements that were removed from the lot: electrical pay boxes, lighting, light poles, and wiring should have been addressed.\n\nCRD contended that it satisfied the contractual obligation to return the leased premises in the condition received at the commencement of the Gibbs Lease.\n\nAt trial, Mr. Montagnet stated his interpretation of what the obligation meant: Q. [Attorney for 721]: “So what did you understand that this handwritten language obligated CRD to do with respect to the damage during the Gibbs [L]ease?” A. Steve Montagnet: “My understanding was that CRD, to the point of which Gibbs construction did not …. Repair” [the lot] “while [it was] in charge and had their [L]ease with Mr. Boes, that we would do it. That is CRD would do it”. Mr. Montagnet, testified that he knew there would be “some repair necessary” caused by Gibbs. In his opinion, CRD’s obligation was upheld and that the finished work was actually “a little bit better” than the pre-Gibbs condition. Further, Mr. Montagnet testified that the asphalt resurfacing done by 721 was a capital improvement and beyond CRD’s scope of obligation. Mr. Montagnet stated that other elements of Gibbs’ damage including electrical conduits and light fixtures were not addressed by CRD because they were “Gibbs’ responsibility.” Further, the brick paver damages were the City of New Orleans’ responsibility. He asserted that the repairs he made to asphalt were adequate and in line with other parking lots he owned."
  },
  "outcome": {
   "amount": 106077.87,
   "amountIsTheRequestedAmount": true,
   "date": "2025-05-08",
   "description": "After a one-day bench trial the court found CRD liable for damage during both leases and awarded 721 all of its claimed repair costs, $106,077.87 (no lost-profit award is described), then awarded $51,770.71 in attorney's fees and judicial interest. The Fourth Circuit affirmed liability but held Gibbs and CRD solidarily liable for the Gibbs-period damage, amended the judgment to reduce the damages by 50% for the settled co-obligor's virile share, and reversed the attorney's fee award because the lease did not provide fees for a Clause 13 breach.",
   "attorneysFeesAtTrial": 51770.71,
   "appellateChange": "modified to $53,038.94",
   "finalAmount": 53038.94,
   "finalNote": "Reduced on appeal to a 50 percent share."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "usbank-br-penn-realty-2025",
  "source": {
   "caseName": "US Bank NA, as Trustee for the Registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Multifamily Mortgage Pass-Through Certificates, Series 2012-K18 v. B R Penn Realty Owner LP",
   "court": "United States Court of Appeals for the Third Circuit (precedential)",
   "docket": "No. 24-1108 (appeal from E.D. Pa. No. 2:21-cv-00502)",
   "decided": "2025-05-08",
   "url": "https://www2.ca3.uscourts.gov/opinarch/241108p.pdf",
   "excerptNote": "Excerpts from Part I (Background) with footnotes 1 and 4, the Pennsylvania loan/mortgage primer in Part III.A, and the description of the complaint's in personam demand. Removed: the sentence stating the bench-trial result and money-judgment amount, the '$51 million' characterization, the affirmance of that judgment in the separate appeal, and everything about the execution sale and this appeal's holdings. Note: this opinion concerns the post-judgment execution sale, so the borrower's defenses at trial are not described; pre-outcome facts are thin. Whitespace normalized; PDF spacing artifacts and footnote markers removed."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent U.S. Bank, N.A., as trustee for a multifamily CMBS trust, suing in the U.S. District Court for the Eastern District of Pennsylvania (diversity) on a $46 million 2011 loan secured by a mortgage on the borrower's Philadelphia apartment building after the borrower, B-R Penn Realty Owner LP, defaulted during the Covid pandemic. The complaint in mortgage foreclosure also demands an in personam money judgment of $46,290,900.25 plus interest, fees and costs under the loan documents; the borrower did not object to the combined in rem/in personam pleading. After roughly two years of litigation over the borrower's liability on the loan, the case is set for a bench trial.",
   "documentText": "In 2011, B-R Penn Realty took out a $46 million loan backed by a mortgage on its Philadelphia apartment building. Nearly a decade later, amid the Covid pandemic, it defaulted. U.S. Bank, Penn Realty’s lender, sued to foreclose in federal court, invoking diversity jurisdiction over its “complaint in mortgage foreclosure” under Pennsylvania law. App. 1–2.\n\nThroughout, we use “apartment building” or “building” as shorthand for the full legal description of the real estate subject to the mortgage.\n\nEric Blumenfeld, a real estate developer, “is the sole member and owner of B-R Penn Realty Manager LLC,” the general partner of Appellant B-R Penn Realty Owner, LP. He also owns the remaining limited partnership interest in Appellant.\n\nWhat is colloquially known as a “mortgage” describes a familiar financial arrangement: a loan from a lender, usually for the purchase of real estate, paid back over time, or else the lender takes the real estate. In practice, this comprises two distinct agreements.\n\nThe first is the loan. A lender, usually a bank, loans the borrower money to buy real estate. The parties form a contract: the lender will provide a sum of money at a certain interest rate, and the borrower is obligated to pay it back, in full and on time.\n\nThe second is the mortgage. It ensures the borrower “perform[s]” that loan “obligation” by giving the lender a lien on the real estate. Stillwater Lakes Civic Ass’n v. Krawitz, 772 A.2d 118, 121 (Pa. Commw. Ct. 2001). If instead the borrower defaults on the loan, “the mortgage entitles the [lender] to pursue foreclosure”—“the process in which property [subject to] a mortgage is sold to pay off the loan balance due.” Obduskey v. McCarthy & Holthus LLP, 586 U.S. 466, 469 (2019) (quotation omitted).\n\nBut if a lender is threatening foreclosure because the borrower failed to pay, that means the borrower breached the terms of the loan. The lender may instead sue for that. “Although foreclosing on the... mortgaged property is the usual course of action taken by a [lender, an] action for a breach of the contract terms in the [promissory] note and [loan] agreement is valid and proper.” Fayette Bank & Tr. Co. v. Hercik, 13 Pa. D. & C. 4th 118, 120 (Com. Pl. 1991) (citing Beaver Cnty. Bldg. & Loan Ass’n v. Winowich, 187 A. 481 (Pa. 1936)). Unlike an in rem foreclosure, the lender’s suit for breach of contract will be in personam against the borrower, and a prevailing lender will be awarded a money judgment for the debt.\n\nIn its complaint, alongside the claim for mortgage foreclosure, U.S. Bank also sought judgment “against [Penn Realty] in the amount of $46,290,900.25,” plus any interest, fees, and costs “recoverable under the Loan Documents.” App. 9. For support, it offered detailed allegations about the origination and assignment of the loan, its terms and Penn Realty’s defaults, and the parties’ forbearance agreement. And for evidence, it offered Exhibit A: a copy of the loan. True, the complaint also alleges a breach of the mortgage.\n\nHere, after U.S. Bank combined the actions in its complaint, the parties spent two years litigating Penn Realty’s liability on the loan."
  },
  "outcome": {
   "amount": 51392086.96,
   "amountIsTheRequestedAmount": false,
   "date": "2025-05-08",
   "description": "After a bench trial the district court held Penn Realty breached the loan agreement and entered an in personam money judgment for U.S. Bank of $51,392,086.96 (no judgment in mortgage foreclosure was entered); the Third Circuit affirmed that judgment in a separate unpublished opinion (No. 23-2185, Sept. 25, 2024). In this precedential appeal the Third Circuit upheld the subsequent execution sale of the apartment building under Fed. R. Civ. P. 69(a) and affirmed the denial of the borrower's motion to quash.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 51392086.96,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure"
 },
 {
  "id": "udot-boggess-draper-2025",
  "source": {
   "caseName": "Utah Department of Transportation v. Boggess-Draper Company, LLC",
   "court": "Utah Court of Appeals",
   "docket": "2025 UT App 58, No. 20220875-CA (appeal from Third District Court, Salt Lake Department, No. 090921179)",
   "decided": "2025-05-01",
   "url": "https://legacy.utcourts.gov/opinions/appopin/UDOT%20v.%20Boggess-Draper%20Company20250501_20220875_58.pdf",
   "excerptNote": "Excerpts from Background ¶¶3-7 and ¶¶9-10 (pre-trial evidentiary motions and rulings on remand), Boggess's severance theory as described at ¶21, and UDOT's expert's benefit testimony quoted at ¶41. Removed: ¶¶1-2 and ¶8 (both jury verdict amounts and the '$1.4 million reduction' comparison), the sentence in ¶5 giving the first verdict amount, ¶11 and ¶28 (the excluded 2008-offer testimony), the description of the retrial verdict, and all appellate holdings. Note: the opinion states the retrial award only as 'approximately $330,000'. PDF running headers and spacing artifacts removed; whitespace normalized."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the landowner, Boggess-Draper Company, LLC, the condemnee (nominal defendant and the claimant for just compensation) in UDOT's 2009 eminent domain action in the Third District Court, Salt Lake County, Utah, taking a strip of Boggess's undeveloped commercial parcel at 11400 South and Lone Peak Parkway in Draper for a new I-15 interchange and road widening. Boggess claims the value of the land taken plus severance damages to the remainder on the theory that the taking diminished access and increased traffic, impairing development; UDOT contends the project conferred offsetting special benefits. A first jury verdict was reversed on appeal for excluding evidence of the 2016 sale and development of the remainder, and the case is set for a multi-day jury retrial on damages.",
   "documentText": "¶3 In 2009, Boggess owned an undeveloped parcel of property (the Property) at the southwest corner of 11400 South and Lone Peak Parkway in Draper, Utah. At the time, 11400 South was a two-lane road that did not connect to the I-15 freeway. Lone Peak Parkway was one of two commercial frontage roads that connected the closest neighboring interchanges on I-15 (10600 South and 12300 South). The area around the Property had already been developed for commercial use and was occupied by a Walmart and two car dealerships.\n\n¶4 UDOT sought to acquire a portion of the Property along 11400 South to construct a new I-15 interchange and widen and extend the existing roadway (the project). UDOT prepared an appraisal to assess the value of the proposed taking, but negotiations fell apart when the parties could not agree on the total value of the taking, which was to include both the value of the taken property and any severance damage to the remaining property. Thereafter, UDOT filed an eminent domain action to condemn the desired portion of the Property. As the litigation progressed, the parties stipulated that the valuation date for the Property was December 17, 2009.\n\n¶5 The matter eventually proceeded to a jury trial that took place in 2018. Utah Dep’t of Transp. v. Boggess-Draper Co., 2020 UT 35, ¶ 5, 467 P.3d 840. Prior to trial, Boggess had filed a motion in limine asking the district court to exclude evidence that Boggess had sold the remainder of the Property in 2016 and that the land had since been developed into two car dealerships. Id. ¶¶ 5–6. The court had granted the motion based on a perceived “categorical rule prohibiting evidence of any sale or development of property after the date of its taking.” Id. ¶ 13.\n\n¶6 UDOT appealed, asserting, among other things, that the district court had erred in granting Boggess’s motion in limine and categorically barring evidence of the post-valuation sale and development of the Property. Id. ¶ 11. The Utah Supreme Court agreed with UDOT. Id. ¶ 2. The court held “that a post-valuation-date sale or other development is potentially relevant evidence, and not subject to a categorical bar under the code,” id. ¶ 23, and that the admissibility of such evidence is governed by the Utah Rules of Evidence, including rule 403, id. ¶¶ 18, 25.\n\n¶7 After determining the district court had erred in excluding the post-valuation sale and development evidence, the supreme court then concluded that the error constituted reversible error. Id. ¶ 31. It reasoned that the exclusion of the evidence had “hamstrung” UDOT in presenting any evidence to rebut Boggess’s claim for severance damages, which was “premised on the idea that UDOT’s taking diminished access to the remaining property and increased commuter traffic.” Id. ¶¶ 32–33. The court accordingly reversed the verdict and remanded the matter for a new trial. Id. ¶ 2.\n\n¶9 Evidence of the post-valuation sale and development of the Property. Boggess filed a pretrial motion in limine seeking to again exclude evidence of the 2016 sale and development of the Property. Boggess argued that this evidence was improper under rule 403 of the Utah Rules of Evidence because any probative value was substantially outweighed by a danger of unfair prejudice, confusing the issues, and misleading the jury. The district court granted the motion in part, concluding that the sales price of the Property should be excluded, but it denied the motion insofar as it concerned evidence of the fact of the sale and subsequent development of the remainder parcel (the post-valuation evidence), concluding that such evidence was admissible.\n\n¶10 Evidence of general benefits to the Property. Boggess filed a second motion in limine to limit UDOT’s expert’s (Expert) reports and expected testimony regarding the following three benefits to the Property conferred by the project: (1) direct access from I-15 bringing more traffic into the area; (2) an increase from one to three lanes traveling for right-in/right-out traffic; and (3) curb, gutter, and sidewalk improvements. Relying on Hempstead v. Salt Lake City, 90 P. 397 (Utah 1907), Boggess argued that Expert’s testimony about these benefits should be excluded because these benefits are “general benefits,” rather than “special benefits,” and general benefits cannot be used to offset severance damages. The district court denied this motion in its entirety. The court reasoned that all three benefits identified by Boggess are special benefits under Hempstead and that Expert was therefore not prohibited from testifying about how these benefits had increased the Property’s value.\n\nAs was the case in the first trial, Boggess’s theory of severance damages was that the taking had diminished access to the Property and increased traffic, thereby harming the Property’s potential future development.\n\nExpert testified that the project had “significantly” benefitted the Property because the price per square foot of the Property in the “before condition” ($8.75) was less than the price per square foot in the “after condition” ($12.50). He attributed the nearly four dollar per square foot increase to “the advantage of the interchange, and the traffic exposure,” and concluded that the difference between these figures demonstrated that the Property had received “a special benefit of 2.2 million dollars” from the project."
  },
  "outcome": {
   "amount": 330000,
   "amountIsTheRequestedAmount": false,
   "date": "2025-05-01",
   "description": "On retrial the jury awarded Boggess approximately $330,000 (the opinion gives only this rounded figure) for the value of the condemned property and found no severance damages, after UDOT's expert was allowed to testify to a $2.2 million project-benefit offset. The Court of Appeals held that interstate access and added travel lanes are general benefits that cannot offset severance damages, found the error harmful, reversed the verdict and remanded for a new trial; no fees are discussed.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Reversed for a new trial; no final figure yet."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain"
 },
 {
  "id": "nco-montgomery-park-2025",
  "source": {
   "caseName": "NCO Financial Systems, Inc. v. Montgomery Park, LLC",
   "court": "U.S. Court of Appeals for the Fourth Circuit (appeal from D. Md., No. 1:11-cv-01020-GLR)",
   "docket": "No. 24-1294",
   "decided": "2025-04-14",
   "url": "https://www.govinfo.gov/content/pkg/USCOURTS-ca4-24-01294/pdf/USCOURTS-ca4-24-01294-0.pdf",
   "excerptNote": "Verbatim from the opinion's introduction, Part I (background), Part II (lease Section 14.04 text) and Part III (description of the parties' pleadings). Removed: the intro sentence describing the roughly $3.8 million fee/cost award under review; the footnote summarizing the holdings of the three prior Fourth Circuit appeals; the sentence stating the bench-trial judgment amount; Montgomery Park's post-judgment fee motion and the district court's fee/cost/interest award figures; and all of the panel's analysis and conclusions."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent Montgomery Park, LLC, landlord of a roughly 100,000-square-foot office lease in a large commercial building on Washington Boulevard in Baltimore, in the U.S. District Court for the District of Maryland. The tenant, NCO Financial Systems, Inc., claims it validly exercised an early-termination right after eight years of a twelve-year term, vacated on May 31, 2011 and stopped paying rent, and sued for a declaratory judgment while alleging rent overcharges based on misstated square footage, unjust enrichment and fraud; we have counterclaimed for a declaration that the lease is ongoing and for past-due rent. The lease has a fee-shifting clause with default-rate interest. The case is set for a bench trial on liability and rent damages.",
   "documentText": "It arose from a dispute over a commercial lease for about 100,000 square feet of office space in Baltimore, Maryland.\n\nOn October 8, 2002, Montgomery Park, as lessor, and NCO, as lessee, entered into a lease agreement for over 100,000 square feet of space in a large commercial building on Washington Boulevard in Baltimore, Maryland. While the initial term of the lease was for 12 years, beginning March 15, 2003, the lease gave NCO the right to terminate the lease after 8 years if it satisfied specified conditions. NCO sought to exercise the right of early termination, but Montgomery Park claimed that it did not satisfy the specified conditions. Despite Montgomery Park's notice to NCO that it had not fulfilled the conditions for early termination, NCO vacated the leased property on May 31, 2011, refusing to pay any further rent. After NCO vacated the premises, Montgomery Park sent it a default letter dated July 13, 2011, stating:\n\nThis letter shall constitute notice of NCO's default . . . due to NCO's failure to pay when due the sum of $313,662.76 . . . . If the foregoing sum due under the Lease is not paid to Montgomery Park within five (5) days following NCO's receipt of this letter, Montgomery Park reserves the right to pursue any and all legal or equitable rights or remedies available under the Lease or otherwise available in equity or at law. In addition, please be aware that late fees and interest charges accrue as provided under the Lease.\n\nIn the context of these disputes, NCO commenced this action in February 2011 against Montgomery Park for a declaratory judgment that it had properly exercised its right to terminate the lease early and that the rent was based on allegedly misrepresented square footage. Montgomery Park filed an answer and counterclaim seeking both a declaratory judgment that the lease was ongoing and a judgment for past due rent. The litigation was contentious and aggressively pursued by both parties.\n\nIn that complaint, NCO alleged that Montgomery Park breached the lease by overcharging for rent, unjustly enriched itself, and committed fraud.\n\nIn its complaint, NCO contended that the square footage for which Montgomery Park was charging rent was inaccurate and was misstated in the lease. And this alleged difference between the square footage provided in the lease and the actual square footage contributed to NCO's failure to satisfy the lease's conditions for early termination. Thus, NCO sought a declaratory judgment that it had properly terminated the lease early, based on the rent attributable to the property's actual square footage, as distinct from the square footage and rent stated in the lease. In its answer and counterclaim, Montgomery Park disputed these claims, alleging that NCO was bound by the lease as written and that it had defaulted in the payment of rent, giving rise to Montgomery Park's counterclaim for past due rent.\n\nIn Section 14.04, the lease between the parties provides:\n\nUpon any Event of Default, Tenant shall remain liable to the Landlord for the following amounts: . . . (c) all reasonable costs, fees and expenses incurred by Landlord in pursuit of its remedies hereunder including but not limited to attorneys' fees and court costs. All such amounts shall be due and payable immediately upon demand by Landlord . . . and shall bear interest at the Default Rate until paid.\n\nThe lease defined the default rate to be 5% above the prime rate of interest, as published in The Wall Street Journal, but not to exceed 12% per annum."
  },
  "outcome": {
   "amount": 9854566.95,
   "amountIsTheRequestedAmount": false,
   "date": "2025-04-14",
   "description": "After a bench trial the district court entered judgment for Montgomery Park on its past-due-rent counterclaim of $9,854,566.95 plus postjudgment interest (upheld in earlier Fourth Circuit appeals at 842 F.3d 816, 918 F.3d 388 and 40 F.4th 123). The court then awarded $2,074,379.88 in attorneys' fees and nontaxable expenses, $115,942.10 taxable costs and $1,576,036.07 default interest ($3,766,358.05 total). In this fifth appeal the Fourth Circuit affirmed the fee/cost award (including expert fees) but vacated the default-interest component, holding interest runs only from the August 24, 2022 demand, and remanded for recalculation; the underlying rent judgment was not disturbed.",
   "attorneysFeesAtTrial": 2074379.88,
   "appellateChange": "affirmed",
   "finalAmount": 9854566.95,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "cumberland-lakefront-blackwing-2025",
  "source": {
   "caseName": "Cumberland Lakefront B, LLC v. Blackwing, LLC, et al.",
   "court": "Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County (appeal from Cuyahoga County Court of Common Pleas Nos. CV-21-953921 and CV-21-953922)",
   "docket": "No. 114311; 2025-Ohio-1263",
   "decided": "2025-04-10",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2025/2025-Ohio-1263.pdf",
   "excerptNote": "Verbatim from the opinion's opening factual/procedural recitation and from its discussion of the tenant's counterclaims (which is where the opinion sets out both sides' contentions and the Pace affidavit). Removed: every sentence stating that the trial court granted summary judgment, granted possession, issued the writ, found liability, held a damages hearing and the amount awarded, deemed property abandoned, or granted summary judgment on the counterclaims; the prior-appeal dismissal history; the appellate court's analysis and conclusions. Two retained sentences refer to Blackwing's position 'on appeal' but state only its contention and demand, not any result. The opinion contains no rent figures."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent Cumberland Lakefront B, LLC, landlord under two commercial leases at North Coast Harbor in downtown Cleveland with tenant Blackwing, LLC (and individual defendants Corey Freeman and Christopher Schramm) for a restaurant and a coffee shop, in the Cuyahoga County Court of Common Pleas. We sued in 2021 for unpaid rent, forcible entry and detainer, breach of contract and money damages; the tenant counterclaimed for breach of contract, fraud and declaratory judgment, principally asserting we owe it $167,050 in unremitted tenant-improvement allowance and that we failed to deliver the space and blocked a vent-hood installation. Our motion for summary judgment on eviction and breach of contract is pending, with lease damages to be fixed at a hearing.",
   "documentText": "Blackwing, as tenant, and Cumberland, as landlord, entered into two lease agreements for commercial spaces located at the North Coast Harbor in downtown Cleveland for Blackwing to open two businesses: a restaurant, \"Sandrine,\" and a coffee shop, \"Cute for Coffee.\" In 2021, Cumberland filed suit against Blackwing based on an alleged failure to pay rent, which included claims for forcible entry and detainer, breach of contract, and monetary damages. Blackwing counterclaimed, setting forth claims for breach of contract, fraud, and declaratory judgment.\n\nIn January 2023, Cumberland moved for summary judgment as to its eviction claim and claim for breach of contract.\n\nIn its counterclaim for declaratory judgment, Blackwing requested the trial court declare that Cumberland's complaint fails because it breached the subject leases and failed to cure prior to commencing this action and cannot establish damages; that landlord self-help is not available to Cumberland under the leases because the leases did not contain the requisite statutory language; that Cumberland cannot exercise any other rights adverse to Blackwing; and that the court order any further relief necessary.\n\nIn its counterclaim for breach of contract, Blackwing contends that Cumberland breached the leases by failing to deliver the space in accordance with the lease agreement, failed to reimburse Blackwing for tenant improvements or utility installation costs, and failed to allow Blackwing to complete its project by preventing installation of a vent hood.\n\nThe thrust of Blackwing's argument on appeal is that it is entitled to $167,050 in tenant improvement funds that Cumberland failed to remit to it. Each lease provided for a $50 per square foot allowance for tenant improvements: \"[Cumberland] will provide a $50 per square foot allowance for Tenant Improvements.\" In its brief on appeal, Blackwing argued that the full amount was due as soon as the leases were executed. During oral argument, Blackwing conceded that standard practice is normally to submit receipts before payment for tenant improvements but argued that the leases were silent as to that provision so the money was due up front. Cumberland contends that it could not pay Blackwing for tenant improvements until Blackwing submitted receipts, which it did not do.\n\nCumberland asserted that in the context of the commercial leasing industry, tenant improvement allowances are a term of art that describes funding provided by a landlord and used to reimburse tenants up to an agreed dollar amount per square foot for tenant improvements to a commercial space, which can include build-out or renovation.\n\nAttached to Cumberland's motion for summary judgment was an affidavit from Richard Pace, CEO of Cumberland and a licensed architect. Pace averred, in part:\n\n18. In commercial leasing and construction, Tenant Improvement allowance is a term with a specific meaning, and describes funding (sometimes obtained with the mortgage as part of financing in new construction) provided by the landlord to reimburse tenants up to an agreed dollar amount per square foot for tenant improvements, build-out, or renovation of a commercial space.\n\n19. In my professional experience, the process followed by Cumberland for reimbursement of Tenant Improvement funds is typical in the commercial real estate industry, including requiring submission of receipts and obtaining bank approval to release Tenant Improvement funds, to ensure the funds being distributed were, in fact, used for Tenant Improvements.\n\nBlackwing contends that Cumberland breached the terms of the leases because it failed to pay for improvements it made to the premises. Blackwing concedes it did not provide receipts for its expenses to be reimbursed but, again, claims it was not required to do so under the terms of the lease."
  },
  "outcome": {
   "amount": 444055.13,
   "amountIsTheRequestedAmount": false,
   "date": "2025-04-10",
   "description": "The trial court granted the landlord summary judgment on its eviction and breach-of-contract claims, restored it to possession by writ (tenant evicted April 6, 2023), and after a damages hearing awarded Cumberland $444,055.13; it later granted summary judgment against all of Blackwing's counterclaims, including the $167,050 tenant-improvement claim. No attorneys' fee award is mentioned. The Eighth District affirmed.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 444055.13,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "kotis-associates-v-united-states-2025",
  "source": {
   "caseName": "Kotis Associates, LLC, et al. v. United States",
   "court": "United States Court of Federal Claims (trial-level opinion and order after valuation trial, Senior Judge Loren A. Smith)",
   "docket": "No. 20-932",
   "decided": "2025-04-23",
   "url": "https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020cv0932-206-0",
   "excerptNote": "Verbatim from the opinion's introduction, Part I.B (Statement of Facts: corridor background and three of the thirteen parcel descriptions), Part II (Procedural History), Part III (Overview of Trial Testimony) and Part IV.B.2 (description of each side's appraisal evidence and the government's objections). Record citations (Tr., JX, PX, DX) were dropped from most sentences, and within the parcel descriptions a few intervening sentences (purchase history, parking/building inventories) were omitted between retained sentences. Removed: the intro sentences stating the Court grants/denies the motions and awards compensation in the amount estimated by plaintiffs' expert subject to modifications; ten other parcel descriptions and part of the corridor chronology (length); the highest-and-best-use findings; the Court's rulings on scope of the taking, the privacy-wall deduction, the credibility of Dr. Kilpatrick and rejection of Mr. Roach's objections; and the per-parcel before/after values and total award on the final page (which is an image in the PDF). No appeal is reflected in this opinion."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the Kotis Entities (Kotis Associates, LLC; Kotis Holdings, LLC; Westover Terrace II, LLC), owners of thirteen commercial parcels — retail, restaurant, office, a multiplex cinema, a planned Publix-anchored center and a downtown development site — underlying and abutting a 3.1-mile former Norfolk Southern rail corridor in Greensboro, North Carolina, in a Fifth Amendment rails-to-trails takings suit against the United States in the Court of Federal Claims. The government has conceded liability, so the only question is just compensation for the interim trail use/railbanking easement imposed on October 11, 2019. Our appraiser, Dr. John Kilpatrick, values the taking at upwards of $44,744,774 plus interest (including the cost of privacy walls); the government offered only a rebuttal appraiser with no opinion of value and argues the parcels would have been burdened by an easement anyway and that the easement is narrow and nonexclusive, so nominal or no compensation is due. The case has been tried to the bench (site visit and trial December 2022 through February 2023) and post-trial briefs are filed.",
   "documentText": "Plaintiffs are three entities controlled by Mr. William Kotis: Kotis Associates, LLC; Kotis Holdings, LLC; and Westover Terrace II, LLC (collectively, \"Kotis Entities\"). The Kotis Entities together own thirteen parcels underlying and immediately adjacent to the Corridor. Defendant, the United States, has conceded liability, so that the only question before the Court is the amount of just compensation owed. The Kotis Entities presented expert valuation testimony and seek upwards of $44,744,774.00 plus interest. The United States presented expert rebuttal testimony questioning the reliability of plaintiffs' expert, but also maintains that plaintiffs are entitled to no compensation because (1) their property would have been burdened by an easement even without the taking; and (2) the ITUR easement is narrow in width and nonexclusive in scope.\n\nThis case concerns the 3.1-mile Corridor immediately south of, and abutting, the Battleground Rail Trail. Until 2014–15, Norfolk Southern provided rail services in the Corridor for the benefit of a single customer, Chandler Concrete/Piedmont, Inc. Mr. Kotis then raised \"serious concerns\" that the railbanking option would jeopardize \"all our planned $150 million investment alon[g] the former railroad,\" and withdrew his support for the project. On April 12, 2019, the City and Norfolk Southern entered into a purchase and sale agreement for the entire Corridor, with the \"exact area of land to be purchased . . . to be determined by a survey\" of the Corridor. The agreement further required the City to: (1) pay the railroad $8,500,000 for the 3.1-mile corridor (approximately $519 per foot as compared to the $312 per foot paid to property owners for the Battleground Rail Trail); and (2) assume railbanking obligations as well as responsibility for all costs associated with the Corridor, including management, liability, and tax burdens, as required by 49 C.F.R. § 1152.29(a)(2).\n\n1430 Westover Terrace (\"Core Life property\"). The parcel is 28,445 SF or approximately 0.65 acres in size, and it is zoned as \"Commercial – Medium.\" The building currently houses Core Life, a high-end eatery. As a result of the taking, nearly half of the parcel—13,800 SF—is encumbered by the ITUR easement. The Core Life building is located almost entirely in the encumbered portion. The unencumbered remainder has no access to Battleground Avenue or to the parking lot on 1424 Westover Terrace.\n\n1310 Westover Terrace (\"Publix property\"). The parcel is 180,388 SF or approximately 4.14 acres in size, and it is zoned as \"Conditional District, Commercial – Medium.\" At the time of the taking, the property hosted restaurants named World of Beer, Osteria and Chicken Salad Chick, and was the site (along with 1500 Mill Street, discussed below) of a planned high-end, 45,600-SF grocery supermarket, Publix, for which the plaintiff owner had executed a lease before the date of the taking. The ITUR agreement burdens 63,330 SF of the parcel, and cuts through parking space, the existing commercial buildings, as well as the footprint of the planned Publix market.\n\n1305 Battleground Avenue (\"Red Cinemas property\"). The parcel size is 251,410 SF (approximately 5.77 acres), and it is zoned as \"Conditional District, Commercial – Medium.\" The site, which fronts Battleground Avenue just south of another arterial road, Wendover Avenue, is currently used for a 44,956 SF multiplex theater, Red Cinemas. The ITUR easement encumbers 98,259 SF of the parcel, which overlaps with the entire back wall of the cinema complex.\n\nOn August 22, 2022, defendant filed a motion for summary judgment arguing that the evidence to be presented at trial supports, at best, \"a nominal award\" that, according to the defendant, \"this Court lacks jurisdiction to provide.\"\n\nSeveral witnesses testified during the valuation trial. For the plaintiffs, the witnesses were Mr. Kotis in his capacity as the majority owner and designated representative of all three plaintiff entities; and Dr. John A. Kilpatrick, an expert appraiser who provided opinions of value. The defendant called one witness: Mr. Stephen D. Roach, a real estate appraiser and consultant. Mr. Roach did not offer opinions of value. Instead, his testimony focused on rebutting Dr. Kilpatrick's methods, assumptions, and conclusions.\n\nDr. Kilpatrick submitted a separate report for each subject property, JX5–JX17, and later submitted an erratum correcting some of his reports, PX82. He estimated the value of the parcels using the income approach, sales comparison approach, and cost approach, and then arrived at his opinion of the \"before\" value by reconciling the results of the three approaches. His method for estimating the after value varied depending on the effect of the taking on the remainder of the parcel. For parcels where there was \"no physically possible use of the remainder,\" such as the Take 5 Oil property, he concluded that the after value was $0. He then calculated the just compensation amount by adding the value of the easement taken to the diminution in value of the remainder.\n\nThe government's expert, Mr. Stephen Roach, submitted a rebuttal report asserting that Dr. Kilpatrick's methodology is inconsistent with standard appraisal practices and his conclusions are not credible. Defendant first argues that Dr. Kilpatrick's valuation estimates based on the income approach are unreliable, because he derived the capitalization rate from a national survey, the CBRE National Cap Rate Survey for the second half of 2019. Second, turning to the sales comparison approach, defendant argues that Dr. Kilpatrick erred by \"ignor[ing] recent [pre-NITU] sales of three subject properties\" and choosing comparables of a \"completely different character\" than the subject property."
  },
  "outcome": {
   "amount": 42641740,
   "amountIsTheRequestedAmount": false,
   "date": "2025-04-23",
   "description": "After the valuation trial the Court of Federal Claims adopted Dr. Kilpatrick's before-and-after values for all thirteen parcels but struck his privacy-wall component, awarding just compensation of $42,641,740 (before values $66,179,431, after values $23,537,691) plus interest at the Moody's Aaa corporate bond rate compounded annually, against a demand of $44,744,774; it also denied the government's motion to reopen the record. No attorneys' fees were addressed in this opinion. This is the trial-level decision; no appellate ruling is reflected.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 42641740,
   "finalNote": "No appeal reflected."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain"
 },
 {
  "id": "dover-mall-v-tang-2023",
  "source": {
   "caseName": "Dover Mall, LLC v. Sam Tang",
   "court": "Delaware Superior Court (Kent County), Resident Judge Jeffrey J Clark",
   "docket": "C.A. No. K22C-07-013 JJC",
   "decided": "2023-10-05",
   "url": "http://courts.delaware.gov/Opinions/Download.aspx?id=353820",
   "excerptNote": "Verbatim from the letter opinion's introduction (parties' positions), 'The Record and Procedural Background' section (including footnotes 16 and 17), and the fact-recitation portions of the Discussion (Tang's two affirmative defenses; his concession on the damages schedule). Removed: every sentence stating the court's rulings on liability, force majeure, mitigation, and the summary-judgment result; the long quoted remedy/reletting lease clauses; the case-law discussion; the Conclusion. The $276,089.72 figure that remains is Dover Mall's stated demand, not the result."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent Dover Mall, LLC, the landlord of an enclosed mall in Dover, Delaware, suing a former nail-salon tenant (who signed an eight-year commercial lease in his individual capacity) in Delaware Superior Court for unpaid rent, accelerated rent and other charges after the tenant stopped paying in April 2020 and surrendered the premises in November 2021. The tenant concedes nonpayment but raises pandemic-based frustration of purpose and impossibility defenses and a failure-to-mitigate defense based on the landlord not reletting the space. The landlord has moved for summary judgment on liability and damages, oral argument has been held and the full lease supplemented into the record, and the motion is under advisement.",
   "documentText": "Defendant Sam Tang rented a store at the Dover Mall to operate a nail salon, but his business lost viability in early 2020 during the State-mandated closure that accompanied the COVID-19 pandemic. He defaulted under his commercial lease and Plaintiff Dover Mall, LLC (hereafter \"Dover Mall\" or \"Mall\") sues him for unpaid rent and damages caused by his alleged breach. Presently, Dover Mall alleges that summary judgment in its favor is appropriate because: (1) the parties entered a binding lease agreement; (2) Mr. Tang defaulted; and (3) the lease's terms bar Mr. Tang's affirmative defenses.\n\nMr. Tang concedes that he had the obligation to pay rent and that he stopped doing so during the pandemic. He contends, however, that the pandemic frustrated the lease's purpose and made his performance impossible. Separately, he contends that Dover Mall's declining occupancy rate and accompanying decrease in foot traffic prior to the pandemic further frustrated the lease's purpose. Finally, he contends that Dover Mall had a duty to mitigate its damages by reletting the store, but failed to do so. In sum, he asserts that summary judgment is inappropriate because issues of fact remain regarding his affirmative defenses of frustration of purpose, impossibility of performance, and the Dover Mall's failure to mitigate its damages by reletting the store.\n\nIn 2014, the landlord, Dover Mall, and the tenant, Mr. Tang, entered an eight-year lease of commercial property in the mall. Mr. Tang rented the property to operate a nail salon in his individual capacity. He operated his business until March 2020, when COVID-19 began its accelerated spread domestically. On March 18, 2020, Dover Mall voluntarily closed the entire mall which forced Mr. Tang to close his salon. Approximately four days later, the Governor issued the first of a series of executive orders that closed all non-essential businesses in the State. Over the next several months, the Governor issued successive executive orders that permitted various businesses in the State to reopen, but nail salons were among the last industries permitted to return to work. Given the length of the mandated closure, Mr. Tang's business lost viability, and he ceased paying rent after March 2020.\n\nThe lease allocated certain risks between the parties. At the forefront is the lease's force majeure provision which provided, in part, the following: [i]f either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure material, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, environmental remediation work whether ordered by any governmental body or voluntarily initiated or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under this Lease, the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Notwithstanding the foregoing, [this provision] shall at no time operate to excuse the Tenant from . . . any obligations for payment of Minimum Annual Rent, Percentage Rent, additional rent or any other payments required by the terms of this Lease when the same are due, and all such amounts shall be paid when due.\n\nSeparately, the parties' lease defined a default as a failure to pay any amount due under the lease. In addition, the lease entitled Dover Mall to choose between alternative remedies in the event Mr. Tang defaulted. Namely, it granted Dover Mall the option to re-enter and take possession and then to either (1) demand payment for the balance of any unpaid rent and future rent through the remainder of the lease term, or (2) relet the property and credit that recovery to the amount Mr. Tang owed.\n\nDuring the fall of 2021, Dover Mall notified Mr. Tang that he breached the lease because he had stopped paying rent. It demanded that he cure his breach within seven days. It then brought a summary possession action against Mr. Tang in Justice of the Peace Court No. 16. With that suit pending, Mr. Tang voluntarily surrendered possession of the premises at some point in November 2021. Dover Mall then withdrew its claim, and the Justice of the Peace Court dismissed the case. To date, Dover Mall has not relet the premises. Dover Mall represented that it has attempted to relet the Premises over the relevant time but has supplemented the record with no evidence to substantiate its efforts.\n\nDover Mall then filed the present suit seeking $276,089.72 for unpaid rent, accelerated rent, and other charges. At oral argument, Dover Mall clarified that the amount it identified in Ex. B to its motion, $276,089.72, is the amount that it now seeks. Mr. Tang countered in his answer that Dover Mall failed to mitigate its damages and relies on common law contract defenses to excuse his duty to pay.\n\nMr. Tang does not dispute his failure to pay rent; rather, he presents two affirmative defenses that he contends excused his duty to pay. First, he contends that Dover Mall's voluntary closure, four days before the first executive order, excused his duty to pay. He maintains that a voluntary closure for public safety reasons did not fall within one of the circumstances contemplated in the lease's force majeure provision. Second, he contends that his duty to pay rent was excused because of Dover Mall's declining occupancy rates between 2014 and 2020 (prior to the pandemic) which made it untenable for him to continue to operate his business.\n\nHere, Mr. Tang concedes the accuracy of Dover Mall's calculations in the schedule attached to its motion for summary judgment. He contests only Dover Mall's alleged failure to mitigate."
  },
  "outcome": {
   "amount": 276089.72,
   "amountIsTheRequestedAmount": true,
   "date": "2023-10-05",
   "description": "The Superior Court granted the landlord summary judgment on liability and damages in the amount of $276,089.72, the full amount demanded, holding the force majeure clause allocated pandemic-closure risk to the tenant and two lease provisions relieved the landlord of any duty to relet. No attorney's fee award is stated. This is a trial-level decision; no appeal is reflected in the opinion.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "n/a (trial-level decision; no appeal in opinion)",
   "finalAmount": 276089.72,
   "finalNote": "Trial-level decision; no appeal reflected."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "frye-v-raphaelson-estate-2023",
  "source": {
   "caseName": "Frye v. Estate of Raphaelson",
   "court": "Delaware Court of Chancery (Magistrate in Chancery, final post-trial report)",
   "docket": "C.A. No. 2020-0325-SEM",
   "decided": "2023-08-31",
   "url": "http://courts.delaware.gov/Opinions/Download.aspx?id=352620",
   "excerptNote": "Verbatim sentences from Part I (Background, subsections A-F: early years, use and occupancy, attempted purchase, Commerce Property, falling out, procedural history) plus the paragraph of Part II.A that lays out each side's unjust-enrichment demand and the occupant's two responsive arguments. Removed: the introduction and conclusion stating the recommended judgment; every 'I find' / 'I recommend' sentence; the magistrate's rental-value estimate and month-by-month computation; the trespass ruling; footnote citations and record cites. PDF line-break and word-split artifacts were normalized; no wording changed."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the estate of a deceased Wilmington, Delaware property owner (the landlord/owner side) in the Delaware Court of Chancery. A long-time occupant of the owner's two small industrial salvage-yard parcels on Dock Street and a fenced cell-tower lot on Commerce Street sued after a handwritten sale agreement fell through; his contract claims were dismissed and only his unjust-enrichment claim remained, while the estate counterclaimed for trespass and unjust enrichment seeking rent for the occupant's continued use after the owner revoked his license in April 2020 and until he vacated in August 2022. The remaining claim and counterclaims were tried in a one-day bench trial before a Magistrate in Chancery on December 14, 2022, and post-trial briefing is complete.",
   "documentText": "The property owner in this action was Marvyn Raphaelson. Mr. Raphaelson passed during the pendency of this action, and his estate (the “Defendant”) has been substituted in his place. Eric Frye (the “Plaintiff”) was Mr. Raphaelson’s friend and occupant at various properties in Wilmington, Delaware.\n\nThat support included Mr. Raphaelson’s renting property to the Plaintiff and his partner. The property was Mr. Raphaelson’s existing salvage yard at 20 Commerce Street in Wilmington, Delaware (the “Scrapyard”). The Scrapyard was a relatively large, industrial flat lot with a warehouse and an office.\n\nThe Plaintiff did not use 110 Dock Street while he and his partner rented the Scrapyard. But 100 Dock Street and 110 Dock Street (together, the “Dock Street Properties”) were also owned by Mr. Raphaelson and located “[d]irectly across the street” from the Scrapyard. The Dock Street Properties were much smaller than the Scrapyard, by a factor of three or four, and included a smaller building than the Scrapyard. But, at least at some point in time, the Dock Street Properties handled the same type of salvage and recycling business as that conducted at the Scrapyard.\n\nThe Plaintiff began exclusively occupying and using the Dock Street Properties by 2016, at the latest. When the Plaintiff moved onto the Dock Street Properties, he and Mr. Raphaelson did not sign a lease, nor is there any indication that they reached a definitive agreement on monthly rent. But there is no dispute that the Plaintiff and Mr. Raphaelson agreed that the Plaintiff could use the Dock Street Properties if he kept them maintained. These individuals did not pay any rent to Mr. Raphaelson. Nor did the Plaintiff, although he made various payments to Mr. Raphaelson which are addressed below. Mr. Raphaelson’s son, Mark Raphaelson, denies that his father would have allowed the Plaintiff to use the Dock Street Properties or the Commerce Property (as defined herein) rent free. Rather, per his son, Mr. Raphaelson expected rent of $4-5,000.00 a month.\n\nThe Plaintiff’s testimony was called into question by Mr. Raphaelson’s son, Mark Raphaelson. Mark testified that he used to drive by the Dock Street Properties “at least two times a week” during the fourteen years that he owned and operated Johnnie’s Dog House on Concord Pike, in Wilmington. There were cars being restored or processed, a food truck, dump trucks and lift trucks, “and it seemed like they were buying and selling so that there was some metal on there.” Based on his experience with the Dock Street Properties, his knowledge of the general vicinity, and his prior experience renting other properties, Mark testified that a fair rental value for the Dock Street Properties was $5,000.00.\n\nIn or around 2017, the Plaintiff and Mr. Raphaelson started discussing a sale of the Dock Street Properties from Mr. Raphaelson to the Plaintiff. They began with a contemplated price of $240,000.00, and the Plaintiff attempted, in vain, to secure financing. Ultimately, per the Plaintiff, Mr. Raphaelson agreed to lower the purchase price to $215,000.00 ($155,000.00 for 110 Dock Street and $60,000.00 for 100 Dock Street) and give the Plaintiff a mortgage. The Plaintiff testified that he made monthly payments of $5,000.00 toward the purchase contemplated in the Agreement. Altogether, the Plaintiff, through J.D.A.S., Inc. paid Mr. Raphaelson $25,000.00. The Plaintiff did not, however, introduce any documentary evidence in support of these repairs or improvements.\n\nMr. Raphaelson owned, and the Plaintiff occupied, one additional property not yet addressed: 10 Commerce Street (the “Commerce Property”). The Commerce Property is “flatland, there’s a cell phone tower on it, and it’s fenced in.” The Plaintiff refused to do so for free and, per the Plaintiff, Mr. Raphaelson offered the Commerce Property to the Plaintiff, to rent “forever for a thousand dollars a month” if he cleaned up. The Plaintiff estimated the cleanup would cost around $16,000.00 and testified that he and Mr. Raphaelson agreed that such amount would be taken from the monthly rent due. Despite confirming an agreement to pay rent, the Plaintiff did not present any evidence that he paid any rent to Mr. Raphaelson for his use or occupancy of the Commerce Property.\n\nOn April 3, 2020, counsel to Mr. Raphaelson sent the Plaintiff a letter purporting to revoke his license to use the Dock Street Properties and the Commerce Property (the “Revocation”). Per the Plaintiff, Mr. Raphaelson recanted the Revocation and told the Plaintiff “not to worry about it.” Contrary to this alleged recanting, though, Mr. Raphaelson filed a summary possession complaint against the Plaintiff in the Justice of the Peace Court on April 15, 2021 (the “JP Action”). Through a stipulation filed on July 12, 2022 and so ordered on July 14, 2022, the Plaintiff agreed to vacate the Dock Street Properties by July 31, 2022. He ultimately left during August 2022.\n\nHere, both sides argue that the other was unjustly enriched by the Plaintiff’s use and occupancy of the Dock Street Properties and Commerce Property. The Plaintiff argues he has been impoverished, and the Defendant has been enriched, by at least $70,000.00. The Defendant counters that the Plaintiff was enriched by using the Dock Street Properties and the Commerce Property from January 2020 through August 2022 without paying rent and seeks compensation of $160,000.00 ($5,000.00 for each month). The Plaintiff makes two arguments in response: (1) the license became irrevocable, rendering the Revocation ineffective unless approved by a court of competent jurisdiction or (2) that the Defendant has failed to introduce sufficient evidence to quantify the enrichment and determine an appropriate judgment."
  },
  "outcome": {
   "amount": 44000,
   "amountIsTheRequestedAmount": false,
   "date": "2023-08-31",
   "description": "The Magistrate's final post-trial report recommended judgment for the estate and against the occupant for $44,000.00 on the estate's unjust-enrichment counterclaim ($1,000 per month for the Dock Street Properties from May 2020 through August 2022, plus $1,000 per month agreed rent for the Commerce Property from April 2021 through August 2022), rejecting the $5,000-per-month / $160,000 demand, denying the occupant's own $70,000 unjust-enrichment claim, and denying the estate's trespass counterclaim; costs to the estate as prevailing party, no attorney's fees.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "none - trial-level magistrate's final report (exceptions available under Court of Chancery Rule 144); no appellate ruling in this document",
   "finalAmount": 44000,
   "finalNote": "Trial-level report; no appeal reflected."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "telegraph-square-7205-2023",
  "source": {
   "caseName": "Telegraph Square II, a Condominium Unit Owners Association v. 7205 Telegraph Square, LLC",
   "court": "Court of Appeals of Virginia (panel opinion Apr. 25, 2023; rehearing en banc granted June 6, 2023; Dec. 19, 2023 published order lifting stay, judgment remains affirmed)",
   "docket": "Record No. 0222-22-4 (Fairfax County Circuit Court No. CL-2019-0012054)",
   "decided": "2023-12-19",
   "url": "https://www.vacourts.gov/opinions/opncavwp/0222224.pdf",
   "excerptNote": "Verbatim sentences from the April 25, 2023 panel opinion's BACKGROUND sections A (Condominium Instruments) and B (Condominium Parking), plus the opening sentence identifying 7205 Telegraph's ownership; several bylaw/declaration block quotes, the 2017 replacement-lease details, and the 2019 acceleration letters were omitted for length. Removed: the appellate summary of assignments of error, section C (Trial Court Rulings) including the $481,434.84 damages award, the over-assessment findings, the attorney-fee award, and all analysis. Expert appraisal figures and demanded assessments are retained as pre-outcome facts."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent 7205 Telegraph Square, LLC, owner of three commercial (warehouse/office) condominium units in Phase IV of the Telegraph Square II condominium in Fairfax County, Virginia, suing the condominium unit owners association in Fairfax County Circuit Court. The association's board reallocated parking in 2015 so that Phase IV units lost most of their reserved spaces, which our client says breached the condominium instruments, violated the Virginia Condominium Act and county zoning, cost it its commercial tenant (a heavy-truck repair shop), and led to improper assessments and liens. Claims are breach of contract (lost rent), declaratory relief, over-assessment, and attorney's fees under the bylaws; the case is set for a bench trial.",
   "documentText": "7205 Telegraph owns all three commercial condominium units in Phase IV of the Condominium Association's development in Fairfax County (the Condominium).\n\nThe Condominium Association was established by condominium instruments—principally the Declaration and Bylaws—recorded in the Fairfax County land records in August 1990 (Condominium Instruments). Pursuant to § 9.1(b) of the Bylaws, \"[i]n any proceeding arising out of any alleged default by a unit owner, the prevailing party shall be entitled to recover the costs of such proceeding and such reasonable attorney's fees as may be determined by the court.\"\n\nThe site plan for the Condominium (\"the site plan\"), approved by Fairfax County in June 1995, requires that Phase IV unit owners be provided at least 30 reserved parking spaces. Logan testified at trial that the requirement of a minimum of 30 parking spaces for Phase IV of the Condominium was necessary for compliance with the Fairfax County zoning ordinance. The Condominium Association's expert witness, a commercial real estate appraiser, testified that 7205 Telegraph's allocation of 12 parking spaces was less than the number required under the applicable zoning ordinance.\n\nIn June 1997, the board of directors for the Condominium Association (Board) decided to assign parking on a per-square-foot basis to each unit owner in the five phases of the Condominium. This parking regime existed in March 2003, when 7205 Telegraph purchased the three commercial condominium units in Phase IV, Units 7205-A, 7205-B, and 7205-C. The combined area of these three units is approximately 15,000 square feet, with 76% storage yard/warehouse space and 24% office space. 7205 Telegraph owned an approximate 22.3% interest in the Condominium's common elements and was assigned a proportionate share of parking spaces within the Condominium. For at least 15 years ending in October 2015, the Condominium Association reserved parking for Phase IV units within Phases IV and V. When 7205 Telegraph purchased its three units, 35 parking spaces were marked \"Reserved 7205.\" Twelve of these reserved parking spaces were in Phase IV and 23 of these reserved parking spaces were located in Phase V.\n\nIn October 2015, the Board decided—by a 2-0 vote—to reallocate parking (\"the 2015 parking re-allocation\") by restricting parking for each unit owner to parking only inside the unit's designated phase, while still assessing fees for Phase I parking to unit owners in all five phases. Although Phase I unit owners as a group accounted for 49% ownership of the Condominium's units, the 2015 parking re-allocation gave Phase I unit owners exclusive use of common element parking in Phase I, thereby diminishing 7205 Telegraph's undivided interest in the Condominium's common elements. Both Board members who voted for the new parking regime were Phase I unit owners who did not disclose any conflict of interest to other unit owners before they voted for the new parking regime.\n\nWhen the Board adopted the 2015 parking re-allocation, 7205 Telegraph was leasing two of its Phase IV condominium units to D&K Heavy Truck Repair, Inc. (\"D&K\"). D&K's five-year lease with 7205 Telegraph (2014 lease) was for a term beginning in September 2014 and ending in August 2019. The 2014 lease required 7205 Telegraph to provide D&K with the exclusive use of 20 parking spaces. D&K began to lose business after the 2015 parking re-allocation restricted parking for Phase IV units and reduced 7205 Telegraph's available parking to 12 spaces, including two handicapped spaces. Although Dennis McDaniel, the owner of D&K, complained about the shortage of parking spaces, the 2015 parking re-allocation made it impossible for William Akers, the managing member of 7205 Telegraph, to satisfy 7205 Telegraph's contractual obligation under the 2014 lease to provide D&K with the exclusive use of 20 parking spaces.\n\nConsequently, D&K could no longer afford to pay its lease obligations to 7205 Telegraph. Because D&K was suffering financially under the 2015 parking re-allocation and 7205 Telegraph wanted to avoid a lawsuit by D&K, Akers and McDaniel mutually agreed to terminate their commercial lease in 2017.\n\nAfter 7205 Telegraph lost its commercial tenant, Akers unsuccessfully attempted to lease or sell 7205 Telegraph's Phase IV units. However, due to uncertainty regarding the availability of parking caused by the 2015 parking re-allocation, 7205 Telegraph's listing agent could not sell or lease 7205 Telegraph's condominium units.\n\nWilliam O'Neill, an expert commercial real estate appraiser, testified that he prepared an appraisal report with two estimates of the market value of 7205 Telegraph's Phase IV units. On the assumption that 7205 Telegraph's Phase IV units had 30 available parking spaces, O'Neill estimated the market value of 7205 Telegraph's Phase IV units at $2,225,000. On the assumption that 7205 Telegraph's Phase IV units had 5 appurtenant parking spaces, O'Neill estimated the market value of 7205 Telegraph's Phase IV units at $885,000. The Condominium Association's expert witness, a commercial real estate appraiser, estimated that the market value of 7205 Telegraph's Phase IV units with 15 parking spaces was $2,080,000, and the value with 34 parking spaces would be $2,190,000.\n\nBetween March 2017 and June 2019, 7205 Telegraph sent the Board multiple letters objecting that the 2015 parking re-allocation was illegitimate and had caused 7205 Telegraph to suffer significant monetary damages. Because 7205 Telegraph believed it was over-assessed for Phase I common elements, 7205 Telegraph stopped paying its condominium dues after December 2017. In response, the Condominium Association recorded liens on 7205 Telegraph's properties in November 2019."
  },
  "outcome": {
   "amount": 481434.84,
   "amountIsTheRequestedAmount": false,
   "date": "2023-12-19",
   "description": "After a bench trial the Fairfax County Circuit Court entered judgment for 7205 Telegraph on all four counts, awarding $481,434.84 in lost-rent contract damages, a further $6,296.70 for over-assessments, release of the association's liens, and $324,977.60 in attorney's fees and costs. A Court of Appeals panel affirmed on April 25, 2023; rehearing en banc was granted, and on December 19, 2023 the court lifted the stay and left the judgment affirmed.",
   "attorneysFeesAtTrial": 324977.6,
   "appellateChange": "affirmed",
   "finalAmount": 481434.84,
   "finalNote": "Affirmed, including after rehearing en banc."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "lagoon-partners-landmark-2023",
  "source": {
   "caseName": "Lagoon Partners, LLC v. Silver Cinemas Acquisition Co., d/b/a Landmark Theatres",
   "court": "Minnesota Court of Appeals",
   "docket": "A23-0194 (Hennepin County District Court File No. 27-CV-21-11262)",
   "decided": "2023-12-11",
   "url": "http://mn.gov/law-library-stat/archive/ctappub/2023/OPa230194-121123.pdf",
   "excerptNote": "Verbatim sentences from the FACTS section (Lease Agreement, Default, Litigation) through the parties' summary-judgment briefing; the opening description of the theater, the block-quoted termination clause, the scheduling-order sentences, and some executive-order detail were omitted for length. Removed: the syllabus and opening paragraph stating the court's conclusion, the block quote of the statutory-limit liquidated-damages language, the executive-order citations, footnotes, the paragraph describing the district court's summary-judgment order and judgment amount, and all analysis. Lagoon's $1,808,470 demand is retained as a pre-outcome fact."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent Lagoon Partners, LLC, landlord of the historic Uptown Theater in Minneapolis, in a breach-of-lease action in Hennepin County District Court against its former tenant, Landmark Theatres, which stopped paying rent during the COVID-19 closures and surrendered the premises in May 2021 with roughly six years left on a 15-year lease. Lagoon terminated the lease, invoked its rent-acceleration and liquidated-damages clause, and seeks the unpaid rent plus the present value of all remaining rent. Lagoon has moved for summary judgment before the discovery deadline; the tenant argues frustration of purpose, that the clause is an unenforceable penalty, and that mitigation (including the landlord's redevelopment of the building) is a disputed fact issue.",
   "documentText": "In 2011, the property was owned by Lagoon Partners LLC, which is owned and managed by Ned Abdul. Silver Cinemas Acquisition Co. (d.b.a. Landmark Theatres) was leasing the property and was showing specialty and independent films, as it had done since 1978.\n\nIn October 2011, after several months of negotiations, Lagoon and Landmark entered into a new 15-year lease. According to Landmark's vice president of real estate, Abdul stated during the 2011 negotiations that he wanted to convert the property into a performance venue but did not believe that the city would allow that type of use because of the historic nature of the property.\n\nThe new lease term began a year later, in September 2012, and was to end in September 2027. The lease provides that the base monthly rent is $16,667 during the first five years of the lease term; $18,333 during the second five-year period; and $20,417 during the last five-year period, with additional amounts due each year for common-area maintenance and real-property taxes.\n\nThe lease also provides certain remedies for Lagoon in the event of a default by Landmark. The lease allows Lagoon to re-enter the property, and, in addition, to either suspend Landmark's right of possession and relet the property or to terminate the lease and recover the rent then due and unpaid. The lease provides that, if Lagoon elects to terminate the lease, Landmark's obligations would be accelerated so that it would be required to pay Lagoon the sum of the rent then due and unpaid and the present value of all rent payments remaining for the duration of the lease term.\n\nFurthermore, the lease provides that Lagoon is entitled to liquidated damages in an amount equal to the sum of the rent then due and unpaid and the present value of the accelerated future rent payments.\n\nOn March 16, 2020, the governor issued another emergency executive order that required the immediate closure to the public of certain places of public accommodation, including \"[t]heaters and cinemas.\" Landmark complied with that emergency executive order by temporarily closing the Uptown Theater. In early May 2020, Landmark's president wrote a letter to Abdul proposing a lease modification that, among other things, would have reduced the amount of the monthly rent after the theater reopened to the public. The parties exchanged e-mail messages but did not agree on a modification.\n\nOn June 5, 2020, the governor issued an emergency executive order that allowed theaters and cinemas to reopen, subject to certain restrictions. Landmark had intended to reopen the theater when allowed to do so. But Landmark refrained from doing so, initially because of civil unrest in the Uptown neighborhood following the highly publicized death of George Floyd on May 25, 2020, and later because of an increased level of crime and violence nearby, which Landmark believed would discourage moviegoers from visiting the Uptown neighborhood.\n\nIn May 2021, Lagoon sought to recover possession of the property by commencing an eviction action against Landmark based on its non-payment of rent. Within days, Landmark voluntarily surrendered the property to Lagoon. The eviction action was dismissed by a stipulation of the parties.\n\nIn June 2021, Lagoon gave notice to Landmark of its termination of the lease. Lagoon demanded payment of $364,212 in unpaid rent as of May 2021 and $1,444,258 for the present value of future rent payments, for a total of $1,808,470. Landmark did not pay any of the amount demanded.\n\nIn September 2021, Lagoon commenced this action against Landmark. Lagoon's complaint alleges one cause of action—breach of contract—and seeks damages of $1,808,470, plus attorney fees, costs, and disbursements.\n\nIn response to an interrogatory concerning any efforts made by Lagoon to mitigate its damages, Lagoon answered as follows: \"Plaintiff attempted to negotiate an amended lease with Defendant. Plaintiff also placed the space on the market for rent from a new tenant; however, no prospective tenants were interested.\" In response to an interrogatory concerning \"any construction work that has occurred on the Property since January of 2020,\" Lagoon answered that it \"began demolition work to the interior of the building in January 2022\" but that \"[n]o other construction has taken place.\"\n\nIn early March 2022—three months before the discovery deadline—Lagoon served and filed a motion for summary judgment, to be heard on the last day of that month. In its memorandum of law, Lagoon argued that Landmark had breached the lease and that Lagoon is entitled to the liquidated damages specified in the lease.\n\nLandmark made multiple arguments in its responsive memorandum of law. First, Landmark argued that its breach of the lease should be excused by the doctrine of frustration of purpose. Second, Landmark argued that the liquidated-damages clause in the lease is an unenforceable penalty. Third, Landmark argued that there are disputed questions of material fact as to whether, and the extent to which, Lagoon had mitigated its damages. In support of that argument, Landmark asserted that Lagoon was in the process of redeveloping the property into a performance venue. That assertion was based primarily on a then-recent news article that described Abdul's then-ongoing work to renovate the property and combine it with an adjacent property into a venue that would host concerts and similar events, with a capacity of 2,500 persons. Fourth, Landmark argued, in the alternative, that the district court should defer ruling on Lagoon's summary-judgment motion so that Landmark could continue to conduct discovery on Lagoon's mitigation efforts, including a deposition of Adbul."
  },
  "outcome": {
   "amount": 1808470,
   "amountIsTheRequestedAmount": true,
   "date": "2023-12-11",
   "description": "The district court granted Lagoon summary judgment in June 2022, held the liquidated-damages clause enforceable so that no mitigation was required, and (after Lagoon waived attorney fees) entered judgment for $1,808,470 plus costs. The Minnesota Court of Appeals reversed on December 11, 2023, holding the liquidated-damages clause unenforceable because actual damages were capable of estimation and the clause ignored the duty to mitigate, and remanded for further proceedings on actual damages and mitigation.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Reversed (liquidated-damages clause unenforceable) and remanded; no final figure yet."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes"
 },
 {
  "id": "franciscan-cvs-i69-2023",
  "source": {
   "caseName": "State of Indiana v. Franciscan Alliance, Inc. f/k/a Sisters of St. Francis Health Services, Inc.; The Market Place at State Road 37, LLC; Hook SupeRX, LLC; SCP 2010-C36-018 LLC; and Johnson County, Indiana",
   "court": "Court of Appeals of Indiana",
   "docket": "22A-PL-2969 (Johnson Superior Court Cause No. 41D04-1911-PL-181)",
   "decided": "2023-11-28",
   "url": "https://public.courts.in.gov/Decisions/api/Document/Opinion?Id=dyEe-G6TfgNLbmXgEg_IkVwtqjV0VXJe2bOJ4VdFqgLdjmWknwT_aQsgFUjNIm_J0",
   "excerptNote": "Verbatim from the Facts section (paras. 3-5) and the waiver discussion (paras. 9-10) describing pre-trial objections, plus the statement of the traffic-flow rule and the Owners' highest-and-best-use argument from the Discussion. Removed: paras. 1-2 (jury award and the State's requested reduction), the final sentence of para. 5 stating what the jury awarded, the figure/exhibit citation, transcript citations, and every sentence stating the court's conclusions, including the attorney-fee and prejudgment-interest rulings. Appraisal figures are retained as pre-outcome evidence."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the landowners, Franciscan Alliance (owner of undeveloped commercial land in Greenwood, Indiana) and SCP 2010-C36-018 LLC (owner of an adjacent CVS pharmacy), in a State-initiated eminent domain action in Johnson Superior Court arising from the I-69 / State Road 37 project. The State took a 0.632-acre commercial strip from Franciscan and will dead-end Fairview Road, lengthening the route to both properties; the State says only the strip is compensable while our appraisers say the loss of easy access destroys the properties' commercial highest and best use. Just compensation is set for a jury trial, with the State having moved in limine to exclude our loss-of-access valuation evidence.",
   "documentText": "To transform State Road 37 into part of the I-69 corridor, the State needed to acquire a 0.632-acre commercial strip of land owned by Franciscan (the Strip). SCP's CVS is located within the bottom-left block labeled \"Marketplace\".\n\nOriginally, Owners had direct access to State Road 37 via Fairview Road. But after the construction project, Fairview Road will not connect to the new I-69 and will instead be turned into a dead-end cul-de-sac. Consequently, northbound traffic needs to travel another mile to reach Owners' properties, and southbound traffic just over three extra miles.\n\nAs part of the condemnation proceedings, multiple appraisers weighed in on what the State owed the owners for the seizure. The Strip was valued at either $40,500 or $47,400, and according to the State's appraiser, this taking was the only compensable damage. But Owners' appraisers found the inconvenient access changed the properties' viable uses from commercial to residential—significantly reducing their values. Franciscan's appraiser calculated a $3 million loss. And SCP's appraiser landed on a value of $4.4 million because the CVS's income derives from \"spontaneous buyers\" who need the \"quick, in and out\" that access to a major roadway provides. The appraiser testified that the loss of easy access would doom the store: \"if you don't have access . . . you really don't survive.\" Additionally, a joint report from the appraisers calculated damages at about $1.9 million for both Franciscan and SCP.\n\nAt the outset of the jury trial, the State objected to a jury instruction that it argued improperly implied that increased travel times were compensable damages. The State even obtained the trial court's permission, with no complaint from Owners, to view its objection as continuing throughout the trial. We also note that, prior to the trial, the State filed a motion in limine to prevent owners from presenting their valuation evidence relating to the loss of access.\n\nA party may not obtain damages in an eminent domain action resulting from a claim that \"traffic is diverted from [the] premises or made to travel a more circuitous route.\" State v. Ensley, 164 N.E.2d 342, 350 (Ind. 1960). Owners argue that this case is an exception to the traffic flow rule because there is a change in their property's \"highest and best use.\" Owners support this argument with a decades old case, itself based on shaky precedent—City of Hammond v. Marina Entertainment Complex, 733 N.E.2d 958, 960 (Ind. Ct. App. 2000). In Marina Entertainment, this court ruled damages could be awarded where a city closed a road just north of the landowners' property resulting in 1.7 miles of increased travel distance."
  },
  "outcome": {
   "amount": 2200000,
   "amountIsTheRequestedAmount": false,
   "date": "2023-11-28",
   "description": "The Johnson Superior Court jury awarded $680,000 to Franciscan and $1.5 million to SCP (a $2.2 million judgment), with attorney's fees awarded to both owners under Ind. Code 32-24-1-14(b) (amount not stated) and 8% prejudgment interest. The Court of Appeals reversed on November 28, 2023, holding the traffic-flow rule bars the access damages, and remanded with instructions to vacate the judgment for SCP and enter judgment for Franciscan for only the value of the strip (appraised at $40,500-$47,400), with prejudgment interest recalculated.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "reversed",
   "finalAmount": 44000,
   "finalNote": "Reversed: only the strip taking is compensable, about $40,500-$47,400 on the record; midpoint used."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain"
 },
 {
  "id": "carmel-barham-dealership-2023",
  "source": {
   "caseName": "City of Carmel v. Barham Investments, LLC, Marion County Treasurer, and Coast to Coast Carmel Corporation",
   "court": "Court of Appeals of Indiana",
   "docket": "22A-PL-2399 (Marion Circuit Court Cause No. 49C01-1712-PL-46760)",
   "decided": "2023-10-30",
   "url": "https://public.courts.in.gov/Decisions/api/Document/Opinion?Id=X9zl-fYtQYK6_4blrcmz4U5qNH5Y6VWpE2-CDAwH2_CN1anKpTYwgg42dNkjGuoR0",
   "excerptNote": "Verbatim from the Case Summary (para. 1 only), Facts and Procedural History (paras. 3-6), and the parties' contentions and easement/Agreed Order language from the Discussion (paras. 11-12, 16, 19). Removed: para. 2 and para. 7 (jury award, post-trial motions, and the court's disposition), appendix citations, and every sentence stating what the appellate court concluded. The $163,000 court-appointed appraisal is retained as a pre-outcome fact."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent Barham Investments, LLC, owner of a four-story glass-showcase car dealership near Keystone Avenue and 96th Street in Indianapolis, as the condemnee in a City of Carmel eminent domain action in Marion Circuit Court for a roundabout interchange project. Carmel took a small triangular strip in fee, an access-control line, and a temporary construction right-of-way; court-appointed appraisers set compensation at $163,000, which Barham rejected on the ground that the taking, together with Carmel's separate condemnation and closure of Threel Road, extinguished the dealership's ingress-egress easement and main entrance. Carmel's motion for partial summary judgment on the access issue was denied and the case is set for a jury trial on just compensation.",
   "documentText": "The City of Carmel used its power of eminent domain to convert the intersection of Keystone Avenue and 96th Street into a roundabout interchange (\"the Project\"). Barham Investments, LLC (\"Barham\"), owns a car dealership, whose main entrance was on Threel Road, near the intersection that Carmel needed to acquire to complete the Project. In April of 2018, the trial court entered an agreed order of appropriation and appointment of appraisers (\"the Agreed Order\"). Barham considered the appraisers' valuation of the Property to be too low because the taking allegedly extinguished its easement in Threel Road.\n\nIn December of 2017, Carmel exercised its eminent-domain power to construct the Project. In doing so, Carmel filed a condemnation complaint in which it claimed that it needed to acquire three separate property interests from Barham, including 0.017 acres in fee simple, an access-control line, and 0.0111 acres in a temporary right-of-way for construction (\"the Property\"). Barham objected to Carmel's complaint, claiming that Carmel had \"failed to properly identify all of the ownership interests being extinguished by the taking. Namely, the easement rights of the landowner to access and use Threel Road.\" Barham's car dealership consisted of a four-story, glass-enclosed car showcase and a guest-entry area positioned towards the dealership's main entrance on Threel Road, which had run alongside Keystone Avenue. However, Carmel had already condemned Threel Road in a separate cause: Carmel v. County Line Owners Association, Inc., Case No. 49D02-1801-PL-003953 (\"the County Line Action\"). So, Carmel did not name Threel Road in its condemnation complaint or seek to acquire it.\n\nIn April of 2018, the trial court denied Barham's objection and the parties entered into the Agreed Order, which authorized Carmel's acquisition of the Property. Barham consented to the \"Appropriation of Real Estate as sought in the Complaint.\" In the Agreed Order, the trial court ordered that the taking consisted of \"frontage along Threel Road\" and that the access-control line \"will be the new west property line of the subject, and the intent is to limit any access to the west of this line towards Keystone.\" The Agreed Order did not include any acquisition of Threel Road.\n\nLater that month, the trial court instructed the three court-appointed appraisers to appraise the Property described in Carmel's complaint. In June of 2018, the appraisers assessed the total just compensation due to Barham to be $163,000.00. Barham disputed the appraisers' valuation, alleging that the \"total damages assessed to [Barham] are too low[,]\" and requested a jury trial.\n\nIn January of 2021, Carmel moved for partial summary judgment, arguing that Barham was not entitled to compensation for its loss of access to Threel Road. In its motion, Carmel relied on the County Line Action, which, in part, had granted Carmel \"the total acquisition of Threel Road\" in April of 2018. In March of 2022, the trial court denied Carmel's motion for partial summary judgment, finding that \"there are genuine issues of material facts that remain unresolved.\" In doing so, trial court explained that Carmel \"cite[d] no law that definitively foreclose[d] [Barham]'s arguments for compensation for the elimination of the ingress and egress easements or the diminution of value that the loss ha[d] caused to the value of their properties.\"\n\nCarmel argues that it \"did not in this case acquire Threel Road or an easement in Threel Road\"; consequently, this case should be controlled by the traffic-flow rule and the trial court erred in leaving the question of whether there had been the loss of an easement for the jury. For its part, Barham argues that the trial court properly denied Carmel's motion for summary judgment because this case involves an easement and a substantial change in how the Property is used.\n\nBarham claims that Carmel owed it compensation for the taking of its ingress and egress easement in Threel Road. At some point, Barham acquired a common Non-Exclusive Easement over, across and under the Easement Property [(i.e., Threel Road)] for pedestrian and vehicular traffic, sewer lines, water lines, fire protection lines and other utilities. The purpose of such easement is to provide the owners, lessees and occupants of such property within County Line Commercial Park ingress and egress to such property, and to provide the means for the owners of property within County Line Commercial Park to service their property with water mains, sanitary sewer mains, and fire protection water lines. The Agreed Order appropriated a \"fee simple area that is a triangular strip of land off of the northwest side of the lot, adjacent to Threel Road\" and a \"temporary right of way of 0.111 acres at the southwest corner of the site to remove the drive entrance and complete drainage work.\"\n\nIn the County Line Action, the trial court granted Carmel, among other things, \"the total acquisition of Threel Road[,]\" causing \"Threel Road [to] be permanently closed as a result of the Project.\" Barham maintains sufficient access to run its business via Aronson Road."
  },
  "outcome": {
   "amount": 2400000,
   "amountIsTheRequestedAmount": false,
   "date": "2023-10-30",
   "description": "After a May 2022 jury trial the Marion Circuit Court entered judgment on a $2.4 million verdict for Barham and denied Carmel's motions to correct error, for new trial, and for remittitur. The Court of Appeals reversed on October 30, 2023, holding Barham had no compensable easement interest in Threel Road (already extinguished in the County Line condemnation) and that the access change was non-compensable under the ingress-egress and traffic-flow rules, and remanded with instructions to grant Carmel partial summary judgment on that issue.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Reversed and remanded; no final figure yet."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain"
 },
 {
  "id": "navient-v-bpg-office-partners-2023",
  "source": {
   "caseName": "Navient Solutions, LLC v. BPG Office Partners XIII Iron Hill LLC and Office Partners XIII Iron Hill LLC",
   "court": "Superior Court of the State of Delaware (LeGrow, J.)",
   "docket": "C.A. No. N20C-04-005 AML",
   "decided": "2023-04-27",
   "url": "http://courts.delaware.gov/Opinions/Download.aspx?id=346910",
   "excerptNote": "Verbatim sentences from Part I (Background) sections A, B, D and E of the post-trial memorandum opinion and from the parties' post-trial contentions (F.1 and F.2); footnote numerals and page breaks removed and PDF-extraction spacing artifacts (e.g. 'B PG', 't hree') restored to the opinion's words. Omitted: the opinion's introductory summary of the result, Part II (Analysis), the Conclusion, and every sentence stating what the Court found or awarded on the counterclaim or on fees."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": true,
   "description": "We represent Navient Solutions, LLC, the tenant (and plaintiff) under a 2012 commercial lease of the 85,563-square-foot Blue Wing office building at the Iron Hill Corporate Center in Newark, Delaware, in a breach-of-lease action in the Delaware Superior Court against the landlord, BPG Office Partners XIII Iron Hill LLC. Navient sued in April 2020 for $503,822.72, the unamortized cost of a cooling tower it replaced in 2019, which the landlord conceded before trial; the landlord counterclaimed for $817,845 in repair and replacement costs for heat pumps, rooftop air units, a transformer and elevators, and each side seeks prevailing-party fees under the lease. A three-day bench trial limited to the counterclaim was held in May 2022 with expert testimony on both sides, post-trial briefing and oral argument are complete, and the matter is awaiting the court's post-trial decision.",
   "documentText": "Plaintiff/Counterclaim Defendant Navient Solutions, LLC (“Navient”) filed this commercial landlord-tenant breach of contract action. Navient is a Delaware limited liability company and was formerly known as Sallie Mae, Inc. Defendants/Counterclaim Plaintiffs BPG Office Partners XIII Iron Hill LLC and Office Partners XIII Iron Hill LLC (collectively, “BPG”) are two Delaware limited liability companies. BPG asserted a breach of contract counterclaim against Navient.\n\nThe Iron Hill Corporate Center is a three-building office complex in Newark, Delaware (the “Office Complex”). On November 20, 2012, Sallie Mae, Inc. (now Navient) and BPG entered into a commercial lease agreement for the Blue Wing with Navient as the tenant and BPG as the landlord (the “Lease Agreement”). The Blue Wing is the subject of this action; it is a three-floor building with approximately 85,563 rentable square feet.\n\nNavient services student loans; in connection with that operation, Navient operated a call center at the Blue Wing. Navient fully vacated the Blue Wing by the end of 2019, which gave Navient enough time to remove furniture and equipment before the Lease Agreement terminated on February 29, 2020. BPG’s counterclaim in this action relates to four areas of Blue Wing equipment and maintenance: (1) a transformer, (2) heat pumps, (3) rooftop fresh air units, and (4) elevators.\n\nThe total unamortized cost of replacing the cooling tower and its component parts was $503,822.72. On January 28, 2020, Navient demanded $503,822.72 from BPG for the then-unamortized cost of the cooling tower replacement. BPG denied its obligation to reimburse the cooling tower costs until shortly before trial, when BPG acknowledged it owed Navient that amount.\n\nOn October 13, 2014, a transformer blew; that transformer was installed at the time the Blue Wing was constructed. Later in the day on October 14, 2014, the blown transformer was replaced. The concrete pad on which the replacement transformer rested was fitted with metal shims in an attempt to level the transformer in compliance with applicable code and the transformer manufacturer’s installation instructions. The replacement transformer had a larger capacity than the original but had a two-position switching arrangement as opposed to the original four-position switch. Navient paid $70,000 for the replacement transformer. Nevertheless, BPG claims it is entitled to $140,000 because Navient did not meet its contractual obligation to install a four-position switch and a permanent level concrete pad under the transformer.\n\nAfter the Lease Agreement ended, BPG employed Edward Levering and Keith Nelson, both from Air Management and Design LLC, to survey approximately 123 heat pumps at the Blue Wing. Again, Mr. Levering recommended that any heat pump that exceeded the 19-year median useful life should be replaced. Mr. Levering’s calculation for the total cost of replacement was $405,800. Mr. Levering identified 25 of 123 heat pump units as non-operational at the time of his evaluation. Mr. Levering stated 11 of the 25 non-operational heat pump units were below their median life expectancy, and these 11 heat pumps should be repaired (rather than replaced) at an estimated cost of $28,750. Mr. Levering stated 14 of the 25 non-operational heat pumps exceeded their median life expectancy and should be replaced at a cost of $107,100. Navient called its own expert, Howard Alderson, an engineer who testified there was no reason to replace a heat pump based solely on its age. Mr. Alderson testified the heat pumps at the Blue Wing as of 2021 were well maintained.\n\nThe Blue Wing has two “Dectron rooftop makeup air units.” These rooftop air units provide makeup air for the Blue Wing, but BPG’s inspection showed the units were not operational when Navient left the Blue Wing because the controls never were programmed for the new controllers installed on the rooftop air units. Mr. Frenck, however, conceded these rooftop air units could be repaired rather than replaced. Mr. Frenck’s estimated cost to repair both rooftop air units totaled $8,400, while BPG’s estimated cost to replace the rooftop air units is between $217,200 and $240,000.\n\nNavient contracted with ThyssenKrupp Elevator Corporation to maintain the elevators at the Blue Wing during the lease. Instead, BPG alleges that in September 2020 it had to repair a bracket in one elevator for $3,345.\n\nNavient sued BPG in April 2020. Navient’s sole cause of action alleged BPG breached the Lease Agreement by failing to reimburse Navient for the unamortized cost of replacing the cooling tower. BPG’s counterclaim alleged Navient breached the Lease Agreement by failing to: (1) maintain, repair, and/or replace heat pump units; (2) maintain, repair, and/or replace the rooftop air units; (3) properly replace the blown transformer and install a permanent pad to level the transformer; and (4) maintain and repair the elevators. BPG requested $817,845 from Navient. Before trial, BPG agreed Navient is owed $503,822.72 for the replacement of the cooling tower. BPG continued, however, to maintain its counterclaim. The trial was limited in scope to BPG’s counterclaim.\n\nBPG contends the Court should enter judgment in its favor in the amount of $817,845, itemized as: (1) $434,500 for heat pumps, (2) $240,000 for rooftop air units, (3) $140,000 for the transformer and pad, and (4) $3,345 for the elevators. It is now undisputed that Navient is entitled to $503,822.72 for the unamortized cost incurred when it replaced the cooling tower at the Blue Wing. What remains in dispute is whether that amount should be set-off, in whole or in part, by BPG’s counterclaim. Navient contends BPG did not prove either liability or damages with respect to its counterclaim. Navient alternatively argues BPG’s counterclaim relating to the transformer is barred by Delaware’s three-year statute of limitations because BPG knew about the replacement transformer in October 2014."
  },
  "outcome": {
   "amount": 424172.72,
   "amountIsTheRequestedAmount": false,
   "date": "2023-04-27",
   "description": "The Superior Court entered post-trial judgment for Navient in $503,822.72 (the conceded cooling-tower reimbursement) less $79,650 awarded to BPG on its counterclaim ($71,250 to repair 25 non-operational heat pumps and $8,400 to repair two rooftop air units), a net principal of $424,172.72 plus prejudgment interest from March 17, 2020; BPG's transformer and elevator claims failed. Navient was held the prevailing party entitled to its attorneys' fees and expenses under lease section 28(q) (amount not stated). This is the trial-level decision; no appeal is reflected in the source.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "none (trial-level post-trial opinion; no appeal in source)",
   "finalAmount": 424172.72,
   "finalNote": "Trial-level post-trial opinion; no appeal reflected."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes"
 },
 {
  "id": "igcfco-iii-v-one-way-loans-2024",
  "source": {
   "caseName": "IGCFCO III, LLC v. One Way Loans, LLC, d/b/a Powerlend; P&G Holdings, LLC, Watermark Banquet and Conference Center, LLC, The Coffee Factory, LLC, and Moses Gross",
   "court": "Michigan Court of Appeals (published), on appeal from the Muskegon County Circuit Court",
   "docket": "No. 366535 (LC No. 2021-001755-CB)",
   "decided": "2024-08-08",
   "url": "https://www.courts.michigan.gov/4a298a/siteassets/case-documents/uploads/opinions/final/coa/20240808_c366535_30_366535.opn.pdf",
   "excerptNote": "documentText is verbatim from Part I (Factual Background): the loan, default, complaint, consent judgment, contempt proceedings, the lender's deficiency motion, the borrowers' response, the lender's reply, and the parties' arguments at the hearing. Removed: footnote 1 (Powerlend's non-appearance) and its marker, the trial court's bench ruling and the final deficiency judgment amount, and all of Part II (appellate analysis and holding). Note: the deficiency judgment equals the figure the lender requested in its motion, which remains in the text as the lender's demand. Whitespace and page-number artifacts normalized only."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lender, IGCFCO III, LLC, which is seeking a final deficiency judgment in the Muskegon County Circuit Court, Michigan, against the borrower P&G Holdings, LLC and the guarantors Watermark Banquet and Conference Center, LLC, The Coffee Factory, LLC and Moses Gross, after the mortgaged commercial property was sold under a consent judgment. The borrowers dispute that the sale was commercially reasonable and seek credit for the property's value and the rents the lender collected. The facts below are from the record.",
   "documentText": "Defendant Gross is the owner of P&G, a holding company that in turn owned several parcels of real property, including the Watermark Banquet and Conference Center, LLC, and the Coffee Factory, LLC. In March 2019, plaintiff gave defendants P & G and One Way Loans, LLC, doing business as Powerlend, a loan of $6,575,000. P & G put forth several of its properties, including Watermark and the Coffee Factory, as collateral for the loan. Additionally, to obtain the loan, defendants signed a security agreement, a promissory note, a credit agreement, a mortgage, and an assignment of all future leases, rents, and profits from the properties in favor of plaintiff.\n\nDefendants defaulted on the loan in early 2021. In May 2021, plaintiff estimated that it was owed $9,183,920. On May 4, 2021, plaintiff filed a complaint against defendants, alleging one count of breach of contract against Powerlend and P&G as the borrowers on the loan and one count of breach of contract against Watermark, the Coffee Factory, and Gross as guarantors on the loan (Counts I and II). Plaintiff further alleged that it was entitled to judicial foreclosure (Count III) and requested that the trial court appoint a receiver for the property (Count IV). Defendants, excluding Powerlend, answered plaintiff’s complaint in June 2021 and generally denied liability.\n\nIn January 2022, plaintiff filed a motion for entry of a consent judgment. The motion stated that the parties entered into a settlement agreement that resolved all of the pending claims. According to the settlement agreement, defendants were required to remit $8.4 million to plaintiff by January 7, 2022. “[I]f Defendants failed to make the required payments,” plaintiff explained, “the Consent Judgment, which was executed as part of the Settlement Agreement would be released from escrow and filed with this Court.” Defendants paid plaintiff $100,000, but defaulted on the remaining $8.3 million due as part of the agreement. Consequently, plaintiff requested that a default judgment for the remaining balance be entered by the court.\n\nPlaintiff filed an amended motion to enter a consent judgment in February 2022. Plaintiff explained that on February 4, 2022, the parties signed an amended settlement agreement, under which defendants were required to pay $175,000 to plaintiff and sign a new proposed consent judgment. Defendants failed to uphold the terms of the amended settlement agreement; thus, plaintiff asked the trial court to enter the revised consent judgment. The revised consent judgment called for the court to enter a judgment in plaintiff’s favor in the amount of “$9,650,000 minus any amounts properly paid by Defendants” and awarding plaintiff the right to take possession of the subject properties. The parties signed the consent judgment, and it was ultimately entered in March 2022.\n\nIn May 2022, plaintiff filed a motion to enforce the consent judgment. Plaintiff explained that as part of the terms of the judgment, defendants were supposed to remit a number of security deposits to plaintiff that corresponded to various rental agreements in an apartment complex on the Watermark property. Despite repeated demands, defendants had failed to do so. Plaintiff asked the trial court to grant its motion and order defendants to turn over all of the outstanding security deposits. On June 1, 2022, defendants filed a response to the motion to enforce the consent judgment, stating that they would agree to turn over the security deposits if plaintiff would identify the tenants who were allegedly moving out of the apartment complex. On June 9, 2022, the trial court entered an order granting the motion to enforce the consent judgment.\n\nOn June 21, 2022, plaintiff filed a motion to show cause, explaining that defendants had failed to comply with the court’s order enforcing the consent judgment, and asking the court to hold defendants in contempt. On July 11, 2022, the court entered an order stating that “the Plaintiff may submit an order directing each defendant to provide a representative to show cause at a court hearing why an order of contempt with sanctions should not be entered.” The order was submitted by plaintiff and signed by the trial court on July 19, 2022. A show-cause hearing was held in August 2022. Plaintiff’s counsel indicated that part of the reason the security deposits had not been turned over was due to defendant Gross failing to maintain a separate account for tenant security deposits in violation of state law. Gross agreed that he had failed to do so and stated at the hearing that he simply did not have the money to pay plaintiff the security deposits. The court noted that it sympathized with Gross’s situation but still found it troubling that he had “basically absconded with security deposits[,]” and elected to hold defendants in contempt. On September 2, 2022, the trial court entered an order granting the motion to show cause and ordering defendants to pay plaintiff $27,377 in security deposits, along with $1,000 for attorney fees, within 30 days.\n\nOn September 27, 2022, plaintiff again filed a motion to show cause, noting that defendants still had not turned over the security payments and asking that they be held in contempt. A hearing on the motion was held in December 2022. The court held defendants in contempt once again, and an order was subsequently entered directing defendants to pay plaintiff $28,377 in security deposits and $1,623 in attorney fees.\n\nIn April 2023, plaintiff filed a motion for entry of a deficiency judgment. The motion stated that defendants still had not paid the money owed as directed by the court in its December 2022 order granting plaintiff’s show-cause motion. Additionally, plaintiff explained that the property had been sold on December 22, 2022, for $5,275,000, which resulted in a net profit to plaintiff of $4,892,187. According to plaintiff, “[i]nterest on the Judgment Amount from the date of the Consent Judgment to the filing of this motion at the rate of thirteen percent (13%) per annum totals $500,000.00.” Plaintiff submitted an affidavit from Jeff Padden, plaintiff’s general counsel, in support of this figure. The proceeds of the sale, along with the $30,000 debt and the $500,000 in unpaid interest created a deficiency of $5,287,812, which plaintiffs claimed defendants were required to pay to satisfy the consent judgment.\n\nDefendants responded to plaintiff’s motion on May 23, 2023. Defendants argued that plaintiff was not entitled to a final deficiency judgment because it had not established that the sale of the property was commercially reasonable under Article 9 of the Uniform Commercial Code (UCC), MCL 440.9101 et seq. Defendants contended that plaintiff intentionally sold the property for a price far below market value and far below the asking price of $7,990,000. Defendants argued that plaintiff was only entitled to a deficiency judgment if the outstanding debt exceeded “the fair market price for the Watermark Properties plus any other rent and other recoveries already collected by plaintiff.” Defendants further contended that the amount of any judgment awarded plaintiff had to be reduced by the amount of any rents or recoveries received after plaintiff took possession of the property, and asked that the court allow limited discovery into these issues. Along with the motion, defendants submitted a lengthy list of exhibits discussing the property and information about property market values, as well as an unsworn and unnotarized copy of an affidavit from Moses Gross.\n\nPlaintiff replied on May 25, 2023. Plaintiff argued that it sold the property in a commercially reasonable manner, using Coldwell Banker Richard Ellis (CBRE) as their real estate broker. CBRE engaged with AMN Group to list the property with a number of commercial real estate listing companies, and relisted the property once the original posting expired. When the property was relisted, plaintiff alleged that CBRE sent out more than 54,000 advertising e-mails. Plaintiff further stated that in late May 2022, CBRE received an offer on the property for $5.2 million, and made a higher counteroffer that was rejected by the prospective buyer. Ultimately, a collective of companies—Shaw Walker Opportunity Zone Business 1, LLC, Shaw Walker Opportunity Zone Business 2, LLC, Shaw Walker Opportunity Zone Business 3, LLC, and Shaw Walker Opportunity Zone Business 4, LLC (collectively “Shaw Walker”)—offered to buy the property for $5,275,000. Plaintiff accepted the offer. According to plaintiff, “The offer to purchase by Shaw Walker of $5,275,000.00 was the best offer received for the purchase of the Property. CBRE and Plaintiff used their best efforts to secure the best price for the sale of the Property.”\n\nPlaintiff additionally argued that the deficiency judgment should not be reduced by the amount of rent received after it took possession of the property, noting that there was not an industrial tenant renting the property from April through December 2022, causing a net loss of $500,000 in income to plaintiff. Plaintiff thus asked the court to enter the deficiency judgment as requested. Along with the response, plaintiff submitted an affidavit from James Barrons, senior counsel for Balbec Capital, LP, a private equity firm that handled financial business for plaintiff. Barrons attested to the amount of money plaintiff earned and lost after taking possession of the property in March 2022. Barrons further detailed the steps that plaintiff took to engage CBRE as a real estate broker and to sell the property, which largely mirrored plaintiff’s explanation of its efforts to sell the property.\n\nThe trial court held a hearing on the deficiency judgment on May 26, 2023. Defendants pointed out that it appeared that plaintiff sold the property quickly before the end of the year for tax reasons, and argued that plaintiff therefore did not sell the property in a commercially reasonable manner. Defendants also argued that plaintiff’s accounting of what was owed in the deficiency judgment was flawed. Plaintiff responded that the deficiency judgment amount was correctly calculated and that the property was sold in a commercially reasonable manner."
  },
  "outcome": {
   "amount": 5287812.0,
   "amountIsTheRequestedAmount": true,
   "date": "2024-08-08",
   "description": "On May 26, 2023, after a hearing on the lender's motion and without an evidentiary hearing, the trial court found the sale commercially reasonable at $5,275,000, refused any offset for rents, and entered a final deficiency judgment for the lender of $5,287,812 (the amount requested) with 13% interest capped at $500,000. The Court of Appeals affirmed, holding UCC Article 9 inapplicable and the consent judgment controlling.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 5287812.0,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "garmong-v-edgerock-development-2025",
  "source": {
   "caseName": "EdgeRock Development, LLC, ZPS Westfield, LLC, and First Bank Richmond v. C.H. Garmong & Son, Inc., Signworks, Inc., and Fox Contractors Corp.",
   "court": "Indiana Supreme Court (on transfer from the Court of Appeals), on appeal from the Hamilton Superior Court 5",
   "docket": "No. 24S-PL-184 (Ct. App. No. 22A-PL-1968; trial No. 29D05-1912-PL-11500)",
   "decided": "2025-06-03",
   "url": "https://storage.courtlistener.com/pdf/2025/06/03/edgerock_development_llc_v._c.h._garmong__son_inc.pdf",
   "excerptNote": "documentText is verbatim from Facts and Procedural History Parts I-IV, ending with the mid-trial summary-judgment rulings and the interpleader of the RIF Funds. Removed: the opening summary (which states the bench-trial result), the two sentences introducing photographs, section headings, page headers, the paragraph listing the trial court's rulings and amounts, the Court of Appeals' decision, and all of the Supreme Court's analysis. Note: the opinion does not describe EdgeRock's reasons for non-payment, so the owner's side is thin. Whitespace normalized only."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent C.H. Garmong & Son, Inc., the general contractor that built infrastructure and retail buildings for EdgeRock Development, LLC's Trails of Westfield mixed-use commercial development in Westfield, Indiana, suing EdgeRock in the Hamilton Superior Court for breach of contract on unpaid invoices and to foreclose its construction liens. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "EdgeRock undertook to commercially develop seventeen acres of property on the southeast corner of State Road 32 and Oak Ridge Road in Westfield, Indiana. The property began as one parcel, and then EdgeRock subdivided it into five lots, which the parties refer to as Lots 1 through 5. The project was to build a mixed use, planned unit development known as the Trails of Westfield, with Lot 4 zoned for multi-family apartments and the rest zoned for retail businesses. At that point, the land had no water or sanitary service, it had homes on it that had to be demolished, and there was limited road access and quality. The Anna Kendall Drain and stream ran through where 175th Street was going to be built, and all five lots were in floodplains or floodways. Thus, significant infrastructure and earthmoving work, including moving the Anna Kendall Drain and stream, was required before the property could be put to commercial use. EdgeRock treated construction on all lots as one project with a single, overarching infrastructure plan executed through a web of contracts. EdgeRock-Garmong Contract (All Lots). EdgeRock hired C.H. Garmong & Son, Inc. to construct common infrastructure (including grading, sewer, and water) on all the lots and to construct buildings on Lots 1 and 2. Fox Contractors Corp. was Garmong’s infrastructure subcontractor for the EdgeRock-Garmong contract, enlisted to perform earthwork and infrastructure installation. That entailed work on all five lots, including utility work, earthwork on Lot 3 to raise its elevation, and building a retention pond on Lot 5 to collect runoff from the area. ZPS-EdgeRock Contract (Lots 1 and 2). ZPS Westfield, LLC bought undeveloped Lots 1 and 2 from EdgeRock, and the parties entered a development agreement requiring EdgeRock to construct retail buildings and common infrastructure on those lots (which EdgeRock fulfilled through a portion of its EdgeRock-Garmong contract). ZPS’s contract with EdgeRock required work only on Lots 1 and 2, and ZPS agreed to pay EdgeRock a total of $1,720,000, which ZPS did. After EdgeRock developed Lot 1, ZPS leased it to Starbucks, and after EdgeRock developed Lot 2, ZPS leased one portion to a Penn Station sandwich shop and another portion to Forum Credit Union. EdgeRock-Dahm Contract (Lot 3). EdgeRock sold Lot 3 to a nonparty, Dahm No. 49, LLC, which Dahm developed into a Crew Carwash. Lots 4 and 5. EdgeRock still owns Lots 4 and 5, which it intended to develop into apartments and mixed-use retail shops, although it has not yet done so. EdgeRock-Fox Contract. EdgeRock also had a separate, direct contract with Fox to move the Anna Kendall Drain, to construct 175th Street between Lots 1–3 and Lots 4–5, and to install related infrastructure. Fox’s work on the 175th Street Project stretched from the southern portion of Lot 2 east, benefiting all lots adjoining 175th Street. The 175th Street Project was to be funded by Road Impact Fee Credits (“RIF Funds”) issued by the City of Westfield.\n\nAs the project was progressing, EdgeRock stopped paying Garmong’s invoices, leading Garmong to record a construction lien for $2,140,722.51. At that point, Oak Ridge Investments, LLC owned Lots 4 and 5, and EdgeRock was one of the company’s members, with Birch Dalton serving as both companies’ manager. Oak Ridge’s investors held promissory notes for the lots’ purchase price, which the investors secured through a mortgage on the property. EdgeRock satisfied Garmong’s lien by borrowing $4.9 million from First Bank Richmond and using some of those funds to pay all of Garmong’s overdue invoices. But EdgeRock used most of the loan proceeds for its own general use or to pay the project’s investors, and it did not put any of the rest of the loan into the project. It used $2,028,443.62—most of the remaining loan proceeds—to pay Oak Ridge investors for satisfaction of their mortgage on Lots 4 and 5, with First Bank then recording its own mortgage on those lots to secure its loan (along with other security, including a security interest in the RIF Funds).\n\nAfter EdgeRock satisfied Garmong’s first lien, more payment disputes arose between EdgeRock, Garmong, and Fox related to work under the EdgeRock-Garmong Contract, leading Garmong to record two liens—one on EdgeRock’s lots, the other on ZPS’s lots—both for the same amount ($1,009,055.62) covering the same work. Fox recorded three liens related to its subcontract work for Garmong—one each on lots owned by EdgeRock, Dahm, and ZPS—all for the same amount ($500,053.42) for the same work. Later, Garmong issued a partial payment to Fox, and Garmong and Fox stipulated that this $500,053.42 debt was reduced to $202,623.56. Fox also recorded three construction liens (one each on properties owned by EdgeRock, Dahm, and ZPS), all in the same amount ($1,213,228.23) for the same work on the 175th Street Project under the EdgeRock-Fox contract. Fox later released its liens on Dahm’s property, leaving the liens on EdgeRock’s and ZPS’s property remaining.\n\nGarmong, and then Fox in quick succession, sued for damages and to foreclose the liens. First, Garmong filed a Complaint for Foreclosure of Mechanic’s Liens, Breach of Contract, Unjust Enrichment and Damages against EdgeRock, ZPS, First Bank, Fox, and Signworks (another subcontractor). Then EdgeRock, Fox, and ZPS counterclaimed. Fox also filed cross-claims against EdgeRock and ZPS, as well as a third-party complaint against Dahm. Fox’s claims against EdgeRock, ZPS, and Dahm sought money damages under several theories and to foreclose its construction liens (although it later dismissed its claims against Dahm). EdgeRock, ZPS, Garmong, and Fox all filed summary judgment motions, which the trial court ruled on mid-trial. Also during the trial, the City of Westfield interpleaded its RIF Funds totaling $938,322.40, in which multiple parties claim an interest."
  },
  "outcome": {
   "amount": 943042.64,
   "amountIsTheRequestedAmount": false,
   "date": "2025-06-03",
   "description": "After an eight-day bench trial, the court held Garmong prevailed on its breach-of-contract claim against EdgeRock for $943,042.64 plus interest and costs, with lien foreclosure for the same amount (Fox separately won $1,301,531.37 against EdgeRock). On transfer the Indiana Supreme Court limited the construction liens to work benefiting each lot (invalidating Garmong's lien on EdgeRock's lots and reducing its lien on ZPS's lots to $520,509.70) and addressed mortgage priority; the in personam money judgment against EdgeRock on the contract claim was not disturbed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 943042.64,
   "finalNote": "In personam contract judgment undisturbed; lien security narrowed on transfer."
  },
  "expectedRole": "Contractor / Design Professional",
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "hall-ca-nv-v-radovan-2022",
  "source": {
   "caseName": "Hall CA-NV, LLC v. Robert Radovan and William Criswell",
   "court": "Texas Fifth Court of Appeals (Dallas), on appeal from the 134th Judicial District Court, Dallas County",
   "docket": "No. 05-19-01412-CV (trial cause No. DC-18-02395)",
   "decided": "2022-05-25",
   "url": "https://storage.courtlistener.com/pdf/2022/05/25/hall_ca-nv_llc_v._robert_radovan_and_william_criswell.pdf",
   "excerptNote": "documentText is verbatim from Part I.a (loan and guaranty agreements) and Part I.b (bankruptcy, litigation and the bench-trial testimony of both sides). Removed: the opening paragraph stating the take-nothing judgment and the appellate conclusion, the subsection headings, Part I.c (the trial court's findings and take-nothing ruling) and all of Part II. The lender's own trial figure ($8,610,279,02 as printed, i.e. its claimed balance) remains because it is the lender's evidence at trial; the court of appeals later rendered judgment for exactly that amount, so outcome.finalAmount equals the lender's demand. Whitespace and page-number artifacts normalized only."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lender, Hall CA-NV, LLC, suing the two individual guarantors, Robert Radovan and William Criswell, in the 134th District Court of Dallas County, Texas, on their guaranties of a hotel renovation loan to New Cal-Neva Lodge, LLC after the borrower's bankruptcy and the sale of the hotel. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "Hall CA-NV, LLC agreed to loan New Cal-Neva Lodge, LLC up to $29 million for a hotel renovation project. The hotel being renovated was the collateral that secured the loan. As additional security for the loan, Hall would receive “100% of the membership interests in” the nearby Fairwinds Estate. Their loan agreement provided that the “maximum aggregate amount of the Loan shall not exceed the lesser of (i) 60% of the Lender approved acquisition and renovation costs, (ii) 60% of the appraised value of the Project, on an ‘as completed’ basis, or (iii) $29,000,000.00.” The loan was to be paid in installments. Interest on the loan, at “rates specified in the Note,” was computed on the unpaid principal balance and was “due and payable as set forth in” a promissory note the parties executed. New Cal- Neva agreed to pay “all expenses of the Loan,” including a Commitment Fee and Hall’s attorney’s fees “incurred in connection” with the loan. According to the promissory note, an additional five percent in interest would accrue on the balance in the event of default. The loan agreement specified that Hall could “perform any of such covenants, agreements and obligations, and any amounts expended by [Hall] in so doing shall constitute additional indebtedness” if New Cal-Neva failed to perform any of its covenants, agreements, or obligations under the agreement and other loan documents. New Cal-Neva also covenanted and agreed Hall would be allowed to settle mechanic’s lien claims that New Cal-Neva failed to discharge.\n\nRadovan and Criswell, the principals of New Cal-Neva, executed and signed separate but identical guaranty agreements guaranteeing the loan. In section two of their respective agreements, Radovan and Criswell “unconditionally and irrevocably guarantee[d] to [Hall] the punctual payment when due, whether by lapse of time, by acceleration of maturity, or otherwise, and at all times thereafter, of the Guaranteed Indebtedness.” The guaranties were continuing guaranties of payment and not guaranties of collection. Radovan and Criswell each agreed “that if all or any part of the Guaranteed Indebtedness shall not be punctually paid when due . . . Guarantor shall, immediately, upon demand by Lender, pay the amount due” on the indebtedness. The guaranty agreements specified that Radovan and Criswell were “jointly and severally liable for the payment and performance” of the guaranteed obligations. Radovan and Criswell, in section nine of the agreements, agreed that their obligations under the agreements shall not be released, discharged, diminished, impaired, reduced, or affected for any reason or by the occurrence of any event, including, without limitation, one or more of the following events, whether or not with notice to or the consent of Guarantor: (a) the taking or accepting of collateral as security for any or all of the Guaranteed Obligations or the release, surrender, exchange, or subordination of any collateral now or hereafter securing any or all of the Guaranteed Obligations; (b) any partial release of the liability of Borrower or any Pledger, or Guarantor hereunder, or the full or partial release of any other guarantor or obligor from liability for any or an of the Guaranteed Obligations; (c) any disability of Borrower, or the dissolution, insolvency, or bankruptcy of Borrower, or any other guarantor, or any other party at any time liable for the payment of any or all of the Guaranteed Obligations; . . . (i) the settlement or compromise of any of the Guaranteed Obligations; . . . or (n) any other circumstance which might otherwise constitute a defense available to, or discharge of, Borrower or Guarantor. The two guarantors also waived their right to require Hall to sue or exhaust its remedies against New Cal-Neva and other guarantors and obligors.\n\nThey waived “any principles or provisions of law, statutory, or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of Guarantor’s Obligations hereunder . . . .” These were waived whether they arose under “common law, in equity, under contract, by statute, or otherwise . . . .” Radovan and Criswell further agreed Hall could “exercise any and all rights granted to it under the Loan Agreement, and the other Loan Documents without affecting the validity or enforceability of this Guaranty.”\n\nFollowing foundation problems with the construction and the loss of certain investors, New Cal-Neva defaulted on the Hall loan and filed for bankruptcy. A buyer was found, and the hotel and related assets were sold for about $38.15 million. The buyer also wanted to purchase the Fairwinds Estate, which was not part of the bankruptcy estate. The bankruptcy court included a “limited exculpation” in its order, which provided as follows: For the avoidance of doubt, and in furtherance of Fed. R. Bankr. P. 6004(f)(2) and other applicable law, the Court hereby confirms and orders that there shall be no personal liability for any individual who executes any documents, including the revised Plan Documents, that the Buyer reasonably deems necessary to effectuate the transfer of the Purchased Assets, including without limitation the Fairwinds Estate, to the Buyer, and any such individual is exculpated from any personal liability that might otherwise arise on account of the execution of such Plan Documents.\n\nThe general contractor, Penta Building Group, claimed to have a priority mechanic’s lien over the hotel property. As part of the bankruptcy settlement, a “lien litigation reserve” of $15 million was carved out of the sale proceeds for Hall and Penta to resolve Penta’s claim. Hall and Penta ultimately agreed Penta would receive $8,025,000 from the reserve. In total, Hall received about $27.5 million plus furniture, fixtures, and equipment, which was about $700,000. Hall also received $171,000 from Old Republic to reimburse it for attorney’s fees. Hall extended additional funds in connection with the bankruptcy, totaling about $2 million. Hall also incurred attorney’s fees from the bankruptcy proceeding.\n\nThrough counsel, Hall demanded Radovan and Criswell pay the full amount of the guaranteed indebtedness pursuant to their guaranty agreements. Hall sued Radovan and Criswell to recover the guaranteed indebtedness under their agreements. They answered, making general and specific denials, and asserting several affirmative defenses, including waiver, estoppel, accord and satisfaction, the one satisfaction rule, failure to mitigate, impaired collateral, res judicata, and collateral estoppel. In appellees’ rule 166 disclosure, they noted the question of a material alteration of the underlying contracts as a “contested issue of fact.” In their “identification of legal matters to be ruled on or decided by the court,” they noted (i) the scope of the bankruptcy court’s exculpation order, (ii) whether Hall may enforce the guaranty agreements, (iii) “[w]hether [their] affirmative defenses preclude enforcement of the guaranty agreements.” At the bench trial, Michael Jaynes, president of Hall, testified that Hall had not sold or transferred its interest in the loan at issue. He said Hall received about $27.5 million plus furniture, fixtures, and equipment from the New Cal-Neva bankruptcy estate. Hall received about $170,000 from its insurer, which it was seeking to recover from Radovan and Criswell. Other than that, Hall had not received anything from any other source. Jaynes said Hall did not pay Penta any amount of money; instead, Penta was paid through the bankruptcy court, like Hall was. Finally, Jaynes testified Hall had never agreed to release Radovan or Criswell from their guaranty obligations. On cross-examination, Jaynes said the maximum amount Hall could advance under the loan documents was $29 million, though it only ever disbursed just under $20 million. He said Hall believed when it closed the loan that it would have a first- priority lien. Eventually, during the bankruptcy, Hall decided there was “significant risk as it related to the priority lien position to us.” Jaynes said it was never determined whether Hall lost its “priority lien at any time.” He said Penta signed a document saying that it had not begun construction at the time of the loan agreement. But he testified there was risk with litigating Penta’s claims. Ronda Tyrrell was responsible for selling the furniture, fixtures, and equipment Hall received from the bankruptcy estate. She testified Hall retained $194,021.62 worth of furniture, fixtures, and equipment, for which she said Hall had not paid because they “haven’t used them.” Tyrrell said the total value of furniture, fixtures, and equipment sold by Hall was $2,290,767.29. Radovan and Criswell also stipulated Hall received about $545,000 for some of these assets and it retained others valued at about $194,000 for a total of over $720,000. David Epperson, Hall’s portfolio manager for the New Cal-Neva loan, testified that, as of July 30, 2019, Hall was owed about $8.6 million on the loan. According to the amortization schedule, this was the sum of the loan balance, which was $7,439,342.70, the interest accrued, which was $639,570.83, and the default interest, which was $531,365.49. The total was $8,610,279,02. Epperson said neither the $194,000 worth of retained furniture, fixtures, and equipment nor the attorney’s fees received by Hall from the title company were reflected as credits on the amortization schedule. Radovan and Criswell stipulated they had “not paid any amounts under their guaranty agreements.” Radovan testified he and Criswell, through New Cal-Neva and with investors, bought the Cal-Neva Lodge property in 2013. They also bought the neighboring Fairwinds Estate. Radovan said he believed Penta had executed releases related to any work Penta did prior to the Hall loan. Radovan testified he pledged the Fairwinds Estate as additional collateral for the loan. “Given the amount of equity in the property,” he said, “we never thought that we’d really be at risk on the personal guarantees up to 20 million.” He said he would not have agreed to guarantee the loan without Penta’s representations, Hall’s title insurance, and the collateral that they had. He acknowledged the guaranty agreements did not reflect that understanding, nor did he tell Hall that those safeguards were the only reason he agreed to guarantee the loan. Radovan said he thought the $32 million indebtedness was greater than the amount he had agreed to guarantee. He testified he was shocked when Hall decided to settle with Penta, though he admitted on cross-examination he did not know whether Penta’s position was correct under the law. Radovan did not want to sell the Fairwinds Estate, which he said he had previously pledged to Hall, but that “at that point, we were doing what the attorneys and the Court was asking us to do.” On cross-examination, Radovan acknowledged Capital One had a first lien on the Fairwinds Estate, and what Hall had was a pledge of membership interest. Radovan said Hall’s attorney said Hall would come after his and Criswell’s guaranty agreements if they sold the Fairwinds Estate. He said he would have resigned, but he obtained an “exculpation” of personal liability relating to the transfer of the Estate from the bankruptcy court. Criswell testified he delegated authority to Radovan regarding “practically every aspect of the Cal-Neva project.” Like Radovan, he said he did not think he was liable under his guaranty agreement because he thought Hall had been “fully paid.” If there was any deficiency, he said, it was because Hall decided to give away some of the bankruptcy sale proceeds to Penta."
  },
  "outcome": {
   "amount": 0.0,
   "amountIsTheRequestedAmount": true,
   "date": "2022-05-25",
   "description": "After a bench trial the trial court ruled for the guarantors and ordered that Hall take nothing, finding among other things that Hall's settlement with the contractor Penta materially altered the agreements, that Hall had no damages, and that the guarantors were exculpated and discharged. The Dallas Court of Appeals reversed, held the guarantors had waived their defenses and Hall conclusively proved liability and the amount owed, and rendered judgment that Hall recover $8,610,279.02 plus post-judgment interest.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 8610279.02,
   "finalNote": "Reversed and rendered for the lender for $8,610,279.02 (the balance it proved at trial). The final judgment equals the lender's stated demand, a pre-outcome fact in the input."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "stark-v-mccarthy-corp-2021",
  "source": {
   "caseName": "McCarthy Corporation v. Stark Investment Group, LLC, Craig Stark, and U.S. Bank, N.A.",
   "court": "Idaho Supreme Court, on appeal from the District Court of the First Judicial District, Kootenai County",
   "docket": "Docket No. 47749",
   "decided": "2021-06-24",
   "url": "https://storage.courtlistener.com/pdf/2021/06/24/mccarthy_corporation_v._stark_investment_group.pdf",
   "excerptNote": "documentText is verbatim from Part I (Factual Background, and the Procedural History through the statement that the case proceeded to a seven-day bench trial), plus the trial evidence on Stark's lender-related costs and the banker's testimony, which the opinion recites inside the discussion of the ICPA award. Removed: the opening summary of the bench-trial result, the trial court's findings on breach, completion-cost damages, lien, slander of title and ICPA liability, the ICPA damages total, the fee award, and all appellate analysis. Whitespace and page-number artifacts normalized; the bid-item and invoice-summary tables (and the sentences introducing them) are omitted."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the owner, Craig Stark (with Stark Investment Group, LLC), in the Kootenai County District Court, Idaho, where his terminated site-preparation contractor, McCarthy Corporation, seeks to foreclose a construction lien and recover unpaid invoices on his RV and boat storage facility, and Stark counterclaims for breach of contract, breach of the implied covenant of good faith and fair dealing, slander of title and violation of the Idaho Consumer Protection Act. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "Craig Stark (“Stark”) was employed at a nuclear power plant in Texas. As he neared retirement in the summer of 2017, Stark decided to retire to Idaho. Stark had some experience in real estate development, having built six homes, a storage facility in Iowa, and a Recreational Vehicle (RV) park in Texas. In March of 2017, Stark purchased approximately twenty-five acres in Kootenai County, Idaho. Stark planned to construct an RV and boat storage facility (hereinafter “the Project”) to provide him with retirement income. Before Stark purchased the property, he met with a civil engineer, Scott McArthur, from h2 Surveying and Engineering (“h2”). Stark employed McArthur and h2 to survey the property, prepare a site disturbance plan, assist with obtaining a conditional use permit (CUP), and prepare the Project’s plans and specifications. Stark also contracted with McCarthy Corporation (“McCarthy”)—a registered Idaho contractor relatively new to the excavating business—for the site preparation. McArthur introduced Stark to Jason Cheyne, a project manager and heavy equipment operator for McCarthy. Cheyne became McCarthy’s project manager on the Project. Stark acted as his own general contractor. This created challenges because Stark resided in Texas until August of 2017. As a result of the logistical challenges, Stark asked McArthur to monitor the Project in his absence. This request resulted in dual responsibilities for McArthur because he was already acting as the quantities engineer with h2 so that McCarthy could prepare invoices for payment. Yet, at the same time, McArthur became Stark’s eyes, ears, and sometimes voice on the Project. The Project was divided into two “phases.” Phase 1 consisted of preparing the land to construct four buildings, an office, fencing, and parking. Phase 2 consisted of constructing five additional storage facilities. The contract between Stark and McCarthy contained a typical “change order” provision, which required any significant changes in the plans to be approved in writing in advance by Stark: Change Orders. Contractor agrees to verbal change orders provided the amount does not exceed $1000 in value; the change order amount is emailed to the Owner; and the Owner accepts the change Order amount by email or writing. The parties agree that any change order exceeding $1000 in value shall be signed by Owner and delivered to Contractor. Prior to entering into the contract, Cheyne dug four test holes on the property for McArthur to analyze and determine whether there was sufficient quantity and quality of earthen materials on-site to be used for the Project’s site preparation. The test holes would also be used to calculate an engineer’s estimated quantities of stripped waste and other materials necessary to complete Phase 1 of the Project. Cheyne and McCarthy would also use these calculations to prepare McCarthy’s bid on the Project. McCarthy’s bid on the entire Project entailed 35 individual bid items totaling $413,551.54.\n\nThe Project plans called for McCarthy to first strip the waste material from the property (Bid item 3), then replace it with fill material (Bid item 4), and finally, cover part of the area with 4 inches of compacted base rock and 3/4 inches of crushed angular rock (Bid item 19). Regarding Bid item 4, it was anticipated that this would be accomplished by McCarthy taking material from an on-site borrow pit to raise the building pad elevations to satisfy the CUP requirements. Bid item 19 was intended to serve as the subbase layer for the asphalt. The first step of the site preparation called for removing the trees on the property. McCarthy subcontracted with Mendenhall Logging to complete this work, which was completed by the beginning of April 2017. The next step entailed stripping the future building sites of vegetation and topsoil and excavating an on-site borrow pit. The on-site borrow pit would be used to mine materials that would, in turn, be used on the property to raise the building and parking area elevations to meet the CUP requirements. Cheyne subcontracted this work to a Montana excavating company, Basin Industrial Services, Inc., (“Basin”). Basin was not licensed in Idaho. On May 18, 2017, McCarthy sent Stark Invoice No. 2435 for the work performed on Bid items 3 and 4. The invoice totaled $112,725.77, which closely resembled the original bid amounts. Stark paid it in full on May 22, 2017. During excavation of the on-site borrow pit, Cheyne and Basin came to the conclusion that there would not be enough fill material generated from the on-site borrow pit to adequately raise the elevations of the building sites and parking areas consistent with the CUP. Cheyne started to import material from a nearby, alternative, off-site pit, known as the “Swartout Pit.” Cheyne took this course of action because it was the least expensive option for obtaining material and it would result in less delay than other options. Cheyne claimed he told McArthur as of May 22, 2017, that he decided to use the Swartout Pit for more fill material. Cheyne believed McArthur to be in agreement with this decision and McArthur had authority from Stark. McArthur asserted otherwise. McArthur testified at trial that he did not agree to, nor did he have knowledge that Cheyne was going to use the Swartout Pit for more fill material. McArthur’s understanding was that there was enough material at the on-site borrow pit to complete Phase 1 of the Project, i.e., bring the initial building pad elevations up to CUP requirements. McArthur understood Cheyne’s concerns about lack of material at the on-site borrow pit as referring to Phase 2 of the Project. McArthur further testified that he had no knowledge that Cheyne used the Swartout Pit for material until after the fact. Stark was not informed that Cheyne was importing material from the Swartout Pit. On July 13, 2017, Stark received Invoice No. 2481, which entailed Bid items 19, 25, 30, and 32. Bid item 19 closely resembled McCarthy’s original bid: 4 inches of compacted base rock and ¾ inches of crushed angular rock, placed and compacted. McCarthy charged Bid Item 19 as 2,867 tons at $17.70206 per ton, for a total item cost of $50,751.80. Five days later, on July 18, 2017, Stark paid Invoice 2481 in full. Despite Stark and McArthur not agreeing to import additional fill material from the Swartout Pit, McArthur provided calculations for the volume of earthen material removed from the site, the amount of material the on-site borrow pit provided, and for the volume of material imported from the Swartout Pit. He provided these calculations to McCarthy on July 21, 2017. McArthur calculated that McCarthy stripped 21,475 cubic yards of material from the property, the on-site borrow pit provided 13,353 cubic yards of fill material, and McCarthy imported 3,584 cubic yards of material from the Swartout Pit. McArthur used a 12% material loss calculation due to compaction for both the on-site fill material and the imported fill material. When McArthur explained these calculations to McCarthy in an email, McArthur noted that the 3,584 cubic yards of imported material from the Swartout Pit was the number provided by McCarthy. The calculations revealed the Project used a total of 16,937 cubic yards of fill material. McCarthy then used McArthur’s calculations to generate Invoice No. 2488, which totaled $158,980.00. Stark received Invoice 2488 on July 25, 2017. The invoice included a single line item for 3,584 tons of “4 [inch] compacted base rock (concrete slab)—¾ [inch] crushed/angular rock” at a unit rate of $30.00 for a total cost of $107,520.00. This line item charge concerned Stark. He questioned this amount with Robert McCarthy (hereinafter individually “Robert”), president of McCarthy, as Stark had already paid $65,530.08 for 15,602 cubic yards of import material compacted in place (Bid Item 4) through Invoice No. 2435 and $50,751.80 for 2,867 tons of 4 inch compacted base rock and ¾ inch crushed angular rock (Bid Item 19) through Invoice No. 2481. The new charge seemed identical to Bid item 19, which Stark had already paid in full. Moreover, the unit price was higher than either Bid item 4 or 19 in the original contract. Stark did not pay Invoice 2488. Stark testified that when he confronted Robert about Invoice 2488, Robert responded by stating, “just pay it now and we’ll figure it out later.” Stark explained that he did not pay Invoice 2488, because he was required by his lender, U.S. Bank, to only submit accurate invoices for payment. As the district court noted, this “discrepancy in billing became the irritation that became the boil that infected the parties’ heretofore positive relationship.” McCarthy now concedes Invoice 2488 contained errors. On August 22, 2017, McCarthy sent Stark Invoice No. 2504, totaling $121,620.55. This invoice included a charge for 6,451.2 tons of “import converted to tons” at a unit rate of $9.00 for a total amount of $58,060.80. At this time, McCarthy also informed Stark that the paving company McCarthy hired as a subcontractor required half of the paving cost—$99,000—upfront, and Stark needed to pay McCarthy for this. The following day, Robert provided Stark with another invoice but renumbered it as “Invoice 2488,” in the increased amount of $238,986.98. This invoice included a similar “import converted to tons” charge, but also included a “to be completed” charge of $99,000 for the paving company’s upfront fee. After receiving the increased invoice, the notice to pay the paving costs upfront, and the parties’ failure to resolve the billing discrepancies, Stark’s counsel sent McCarthy a termination letter on August 25, 2017. The letter reasoned that Stark was terminating the contract for McCarthy’s material breach of the contract, but the letter did not set forth the nature of the material breach. Despite the termination, McCarthy continued to send Stark revised versions of Invoice 2488. On September 1, 2017, Stark received an invoice for $162,087.56. This invoice included a slight increase for “import converted to tons” in the amount of $58,060.80 and a not- before-seen, one line item charge for “6,554.95” cubic yards of “additional borrow” at a unit price of $4.03 per cubic yard for a total of $26,416.45. On September 11, 2017, Stark received a subsequent invoice in the lesser amount of $145,706.56. It included a slightly lesser charge for “import converted to tons” at $55,000 but the same “additional borrow” charge of $26,416.45. On September 22, 2017, Stark sent McCarthy a payment of $49,399.99 with the condition that McCarthy execute an unconditional lien release for all labor, material, and services rendered through September 22, 2017. Stark also included a detailed letter that explained why he believed he owed McCarthy only $49,399.99 from the latest invoice of $145,706.56. Stark agreed to pay McCarthy for the additional 3,200 cubic yards of fill material it imported from the Swartout Pit, at the contract rate used for other fill material. McCarthy rejected the payment and conditions. On this same day, McCarthy filed a Claim of Lien on Stark’s property for $145,706.56 with the Kootenai County Recorder as Instrument No. 2612854000. On October 5, 2017, Stark sent McCarthy an identical payment of $49,399.99, but without conditions. McCarthy accepted the payment. On October 23, 2017, Stark received another invoice in the increased amount of $176,691.71. The “import converted to tons” charge increased from 6,451.2 tons to 8,780.4 tons with an increased unit rate of $10.95 per ton for a total charge of $96,145.38. The amount of “additional borrow” in this invoice increased from 6,554.95 cubic yards to 17,612 cubic yards for a total charge of $70,976.36. This invoice was practically identical to the last invoice, except for the increase in “import converted to tons” and “additional borrow.” The total invoice calculated at $226,031.70 but stated the amount due was $176,691.71; presumably because it applied Stark’s final $49,399.99 payment generally instead of specifically to certain line items, as stated in Stark’s letter. McCarthy had not performed any additional work or provided any additional materials since its termination on August 25, 2017. Stark did not make another payment. After the dispute began between Stark and McCarthy, Robert took over direction of the subsequent invoices, including the multiple renditions of Invoice 2488 and Invoice 2504.\n\nTo complete the Project, Stark contracted with Waldo Construction, Inc., and other subcontractors. Due to McCarthy’s lien on the property, Stark was required by U.S. Bank to extend his construction loan at least three times.\n\nMcCarthy brought suit against Stark, Stark Investment Group, LLC, and U.S. Bank, seeking to (1) foreclose the lien it placed against Stark’s property and (2) seek damages for breach of contract. McCarthy also requested attorney fees pursuant to Idaho Code section 12- 120(3). Stark answered McCarthy’s complaint and counterclaimed for breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent misrepresentation, slander of title and recordation of unjust lien claim, and breach of the Idaho Consumer Protection Act (ICPA). Stark requested attorney fees under Idaho Code section 12-120(3), and under Idaho Code section 48-608(1) of the ICPA. Before trial, Stark voluntarily dismissed his counterclaim for fraudulent misrepresentation. The case proceeded to a seven-day bench trial.\n\nFurthermore, due to McCarthy’s lien, U.S. Bank required Stark to place $265,037.55 as collateral, into a non-interest bearing account with U.S. Bank from November 10, 2017, through trial.\n\nAt trial, Stark presented evidence that the costs to indemnify and defend U.S. Bank were $4,646.70. The additional construction loan costs were $2,050.00 and the two inspection fees totaled $900.00. Gavin Mobraten, a banker at U.S. Bank, testified at trial that the requirement of Stark to deposit money into a collateral non-interest account, the indemnity and defense costs, extra loan costs, and inspection fees could have been avoided but for McCarthy’s lien. Mobraten also testified that if Stark had put $265,000.00 into an investment account in 2017, instead of the non-interest account required by U.S. Bank, he could have reasonably expected an interest return rate of 5-7%."
  },
  "outcome": {
   "amount": 85861.29,
   "amountIsTheRequestedAmount": false,
   "date": "2021-06-24",
   "description": "After a seven-day bench trial the district court dismissed McCarthy's lien-foreclosure and contract claims and awarded Stark $51,760.83 on his breach-of-contract counterclaim (completion cost of $202,090.81 less $150,329.98 unpaid contract balance) plus $34,100.46 in ICPA damages (total $85,861.29), and $129,434 in attorney fees and $4,535.33 costs. The Idaho Supreme Court affirmed in full and awarded Stark fees on appeal.",
   "attorneysFeesAtTrial": 129434.0,
   "attorneysFeesOnAppeal": "awarded (amount not stated)",
   "finalAmount": 85861.29,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Owner / Developer",
  "category": "construction-defect",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "globe-contracting-v-hour-2025",
  "source": {
   "caseName": "Globe Contracting LLC v. Raymond R. Hour, Kimberly Taing, Hour Taing Enterprise LLC, and Hour Chiropractic Clinic Inc.",
   "court": "Utah Court of Appeals, on appeal from the Third District Court, Salt Lake Department",
   "docket": "No. 20240058-CA, 2025 UT App 98 (district court No. 170900003)",
   "decided": "2025-07-03",
   "url": "https://storage.courtlistener.com/pdf/2025/07/03/globe_contracting_v._hour.pdf",
   "excerptNote": "documentText is verbatim from the Background, paragraphs 3-16 (contract and dispute; complaint, counterclaim and pretrial litigation), ending before 'Trial and Ruling'. Removed: the summary of the appellate rulings in paragraphs 1-2, footnotes 1-5 and their markers, running page headers, one section heading, and paragraphs 17 onward (the court's findings, damages award, post-trial rulings and all appellate analysis). Note: the damages awarded equal the figure Globe requested in its pretrial damages exhibit, which remains in the text as Globe's demand."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Globe Contracting LLC, the general contractor that built an office building for Dr. Raymond Hour's chiropractic clinic, suing Hour and related parties in the Third District Court, Salt Lake Department, Utah, for breach of contract, lien foreclosure and related claims after Hour stopped making progress payments and terminated the contract; Hour counterclaims that Globe breached first through delay, defective work and unpaid subcontractors. The contract has a prevailing-party attorney fee clause. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "Hour is a chiropractor, and Globe is a licensed general contractor. In October 2015, Hour and Globe agreed to a contract under which Globe would construct an office building for Hour’s chiropractic clinic. Under the terms of the contract, Hour was to pay Globe $650,000 “subject to additions and deductions for written change orders.” Hour was required to pay Globe through monthly “progress payments” that were due 30 days after Globe sent Hour an application for payment, and Globe’s applications for payment were to be sent “on or before the 30th day of each month for labor and materials delivered to the jobsite during the month.” ¶4 The contract stated that the monthly progress payments could be “withheld” under four delineated circumstances: 1. Work is found defective and not remedied; 2. [Globe] does not make prompt and proper payments to subcontractor; 3. [Globe] does not make prompt and proper payments for labor, materials, or equipment furnished; 4. Another contractor is damaged by an act for which [Globe] is responsible. ¶5 The contract provided that construction was to “begin within seven (7) days after issuance of building permit,” that work was to “be substantially completed two-hundred and ten (210) days after issuance of building permit,” and that “[a]ny request for additional days [was to] be treated as a request for a change order, and must be in writing before it will be considered by” Hour. The contract further provided that the “times stated in” the contract could be “extended by a change order” by Hour or when Globe was “delayed in work progress by changes ordered, . . . weather, . . . or other causes beyond [Globe’s] control or which justif[ied] the delay.”\n\n¶6 The contract also stated that if Globe “default[ed] in performances of any provision” from the contract “or fail[ed] to carry out the construction in accordance with the provision of the contract documents,” Hour was entitled to “terminate” the contract “on thirty (30) days written notice to” Globe, or to instead not terminate the contract but “make good the deficiency of which the default consists, and deduct the cost from the progress payment then or to become due to” Globe. Finally, the contract contained an attorney fee provision, which stated that if “any action is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party’s attorney fees.” ¶7 The city issued a building permit on December 1, 2015. As a result, a construction expert later testified at trial (and no party has disputed on appeal) that, under the contract’s 210-day provision, construction was expected to begin on December 7, 2015, and be “substantially completed” by July 5, 2016. In late 2015 and early 2016, however, there were construction delays caused by “abnormally cold weather,” “rain fall and subsequent mud,” and the discovery of “[c]oncealed debris” on the building site. ¶8 On June 7, 2016, Hour, through his attorney, sent a letter to Globe stating that “as of this time, it is apparent that there is no way the work can be completed by [the required] date.” Hour informed Globe that he was giving “notice pursuant to the contract that [Globe was] in default” and that he was also giving “30 days notice of his termination of the contract.” On July 18, 2016, Hour’s attorney sent another letter to Globe stating that because “the building [was] not substantially completed within two hundred and ten days as required” by the contract, Globe was “in default” and the contract was “no longer binding on . . . Hour.” ¶9 But although these letters spoke of “termination,” Hour later informed Globe that he would give it “till the end of September” to complete the project. Moreover, during construction, “Hour initiated 24 changes” to the project, “most of which were substantial changes that affected the finished portions of construction and were initiated after the date of Hour’s 30-day notice to terminate” the contract “for lack of progress,” and at least some of which were requested after the July 2016 letter. ¶10 Hour made timely payments for the first seven progress payments, the seventh of which was linked to the June pay application. But Hour did not make the eighth, ninth, or tenth progress payments, which were due, respectively, at the end of August, September, and October. Even though Hour stopped paying, Globe continued with its construction work until the end of September 2016. ¶11 On September 22, 2016, Hour notified Globe that he was dissatisfied with the quality of the workmanship. On September 28, 2016, Hour terminated the contract. As of September 28, however, both Hour and a new contractor that he had hired to take over the project believed that the project “was substantially complete.” The next day, the city performed a “scheduled” inspection for temporary occupancy. The building did not pass the inspection because, among other reasons, the stairwell doors were not fire rated.\n\n¶12 In January 2017, Globe sued Hour, asserting a number of claims. Those relevant to this appeal were claims for breach of contract, breach of warranty, unjust enrichment, lien foreclosure, breach of implied covenant of good faith and fair dealing, and intentional interference with contractual relations. In connection with these claims, Globe requested damages, prejudgment and postjudgment interest, and attorney fees. Globe filed the complaint in the Third District Court, and it originally did so pro se. A few months after Globe filed its complaint, attorneys who were based in southern Utah filed a notice of appearance, and those attorneys represented Globe throughout the ensuing several years of litigation (and have continued to do so up through this appeal). ¶13 Hour filed an answer that included a counterclaim against Globe. In his answer, Hour asserted that he was justified in not paying Globe—indeed, for even “terminat[ing] . . . the contract”— because Globe itself had committed “material breaches of the contract.” Hour elaborated on these assertions in his counterclaim, alleging there that Globe had breached the contract by, among other things, “failing to complete the work on the project within 210 days[] without good cause,” performing substandard and defective work, “hiring subcontractors who were not licensed to do the work and/or not qualified for the work they were hired” to do, and “failing to pay several of its subcontractors who worked on the project.”\n\n¶14 After a series of pretrial rulings, the case went to a bench trial on the claims and counterclaims listed above. ¶15 At the close of discovery, and pursuant to court order, the parties submitted direct examinations of their witnesses in written form in early March 2020. Trial was scheduled to occur at the end of March 2020, but it was delayed for nearly three years due to the COVID-19 pandemic. A several-day bench trial was eventually held in February and March 2023, at which time the parties were able to cross-examine and then examine, on redirect, the witnesses whose direct examinations had been submitted years earlier in written form. ¶16 As part of its submissions in 2020, Globe submitted a direct examination of Matthew Barlow, who was Globe’s president and a managing member. In that written examination, Barlow stated that he had previously filed a construction lien on the project for $55,533.17, and that, at the time, Globe seemed to have intended for this to reflect the amount that Globe believed that Hour still owed to Globe. Before trial resumed in 2023, however, Globe submitted a damages exhibit that requested $61,901.92 in damages. During a hearing, Hour’s counsel explained that the two sides had “talked about” certain “change orders” and had accordingly “changed” certain numbers by way of “stipulation[].” In a posttrial filing, Globe explained that while it had been preparing for the 2023 trial, it had become aware of “certain change orders that were either undisputed or not properly accounted for” in the earlier estimate of damages, thus resulting in the change."
  },
  "outcome": {
   "amount": 61901.92,
   "amountIsTheRequestedAmount": true,
   "date": "2025-07-03",
   "description": "After a bench trial the district court held Hour materially breached by withholding the July-September 2016 pay applications without justification, awarded Globe $61,901.92 in damages (the amount in its damages exhibit) with lien foreclosure, and later awarded $108,798.14 prejudgment interest, $98,531.00 attorney fees and $32,179.97 costs. The Utah Court of Appeals affirmed liability and the damages award but vacated the prejudgment interest, costs and fee awards and remanded them.",
   "attorneysFeesAtTrial": 98531.0,
   "attorneysFeesOnAppeal": "vacated and remanded",
   "finalAmount": 61901.92,
   "finalNote": "Damages affirmed; interest, costs and fees vacated and remanded."
  },
  "expectedRole": "Contractor / Design Professional",
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "huntington-bank-v-limited-investment-group-2022",
  "source": {
   "caseName": "Limited Investment Group Corp. v. Huntington National Bank (consolidated with Franklin County Treasurer v. Limited Investment Group Corp. and two Huntington National Bank v. Limited Investment Group Corp. actions)",
   "court": "Court of Appeals of Ohio, Tenth Appellate District (Franklin County)",
   "docket": "Nos. 21AP-61, 21AP-62, 21AP-63, 21AP-64, 2022-Ohio-3657 (C.P.C. Nos. 10CV-3000, 12CV-1454, 12CV-1602, 12CV-6175)",
   "decided": "2022-10-13",
   "url": "https://storage.courtlistener.com/pdf/2022/10/13/ltd._invest._group_corp._v._huntington_natl._bank.pdf",
   "excerptNote": "documentText is verbatim from paragraphs 2-20 (the loan, the draw dispute, the fire and insurance check, the cognovit judgments, the borrower's suit, the foreclosure, receivership and creditor's-bill actions, and consolidation). Removed: paragraph 1 (which states the appeal is affirmed), footnotes 1 and 2 and their markers, running headers, paragraph 21 onward (the bench-trial findings, the amount the court held due, the fee award, and all appellate analysis). Note: the facts are recited after a bench trial the bank won, so they lean toward the bank's version."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lender, The Huntington National Bank, in consolidated actions in the Franklin County Court of Common Pleas, Ohio, on a $900,000 loan to Limited Investment Group Corp. to rehabilitate a shopping center: the bank seeks to enforce its cognovit judgment on the note, foreclose its mortgages and reach insurance proceeds, while the borrower sues the bank for breach of contract, fraud and conversion for refusing to advance the rehabilitation funds. The consolidated cases are set for a bench trial. The facts below are from the record.",
   "documentText": "{¶ 2} In 2003, Ashraf Ettayem formed Limited to acquire and rehabilitate commercial properties in Columbus, Ohio. Ettayem was the president and sole shareholder of Limited. In 2005, Limited purchased a shopping center located at 3150 Allegheny Avenue for approximately $400,000. When Limited purchased the shopping center, four tenants occupied it. By 2007, only one remaining tenant rented 1,000 square feet of the 27,000 square feet of available space. {¶ 3} In January 2008, Ettayem requested that Huntington extend a loan to Limited for the purpose of rehabilitating and remodeling the Allegheny shopping center. Huntington agreed to loan Limited $900,000. On October 1, 2008, the parties executed the loan documents. Those documents included: (1) a Business Loan Agreement; (2) a Promissory Note in the original amount of $900,000; (3) Open-End Mortgages on the Allegheny shopping center, and on a second property Limited owned, 329 South Central Avenue; (4) a Disbursement Request and Authorization; and (5) an Agreement to Provide Insurance. {¶ 4} The Promissory Note stated that it \"evidence[d] a straight line of credit.\" (Limited's Ex. 20.) Although the principal amount of the loan was $900,000, Limited did not have to request the disbursal of the entire $900,000. The Promissory Note only obligated Limited to repay \"so much [of the principal amount] as may be outstanding, together with interest on the unpaid principal balance of each advance.\" Id. {¶ 5} The Business Loan Agreement contemplated both initial and subsequent advances of loan funds. Each request for the advancement of funds had to satisfy the conditions precedent contained in the Business Loan Agreement. The conditions precedent included the requirement that Limited provide Huntington specified documents, such as security agreements and financing statements, as well as the requirement that Limited provide \"such other resolutions, authorizations, documents and instruments as Lender or its counsel, may require.\" (Limited's Ex. 19.) {¶ 6} After the signing of the loan documents, Huntington immediately disbursed approximately $535,000 of loan funds. The disbursed funds paid off a promissory note, which was secured by a mortgage encumbering the Allegheny property; a second promissory note, which was secured by a mortgage encumbering the Central Avenue property; a line of credit with another bank; and credit card debt. Because the principal amount of the loan was $900,000, approximately $365,000 remained available to Limited for the rehabilitation of the Allegheny shopping center. {¶ 7} In November 2008, Ettayem sent Huntington loan officer Travis Sanders a copy of a work proposal for the rehabilitation of the Allegheny shopping center in the amount of $146,910. Ettayem requested the disbursement of loan proceeds in the amount of the proposal. Sanders, however, informed Ettayem that Limited would have to submit certain forms in order to receive a disbursement of funds for the rehabilitation of the property. Sanders had given Ettayem copies of the necessary forms on October 1, 2008 when the parties signed the loan documents. {¶ 8} The required forms consisted of documents entitled \"Application and Certificate for Payment\" and \"Continuation Sheet,\" as well as a mechanic's lien waiver form. (Huntington's Ex. U.) The AIA forms allow a contractor to apply for partial payment after completion of a phase of work by providing evidence of the percentage of rehabilitation work completed. Huntington required the mechanic's lien waiver form to ensure that no mechanic's liens would affect the bank's collateral. {¶ 9} Sanders told Ettayem that Huntington only disbursed funds based upon rehabilitation work completed in phases throughout the project. Consequently, Huntington refused to advance to Limited $146,910 based solely upon a contractor's work proposal. {¶ 10} The Promissory Note established a draw period during which Limited could request the disbursement of loan proceeds from Huntington. Specifically, the Promissory Note provided, \"Draw period. The proceeds of the loan evidenced hereby may be advanced in partial amounts during the term hereof and prior to maturity, and no partial advance shall be made after March 28, 2009.\" (Emphasis sic.) (Limited's Ex. 20.) Limited never submitted to Huntington the necessary forms for an advance for rehabilitation work prior to the expiration of the draw period on March 28, 2009. Huntington, therefore, did not disburse to Limited any funds for the rehabilitation of the Allegheny shopping center. {¶ 11} The terms of the Promissory Note required Limited to begin making monthly payments of both principal and interest beginning on April 28, 2009. Limited made the required payments for three months. In July 2009, Ettayem attended a meeting with Sanders and another Huntington representative. The Huntington employees told Ettayem that Huntington would not extend the draw period or disburse the remaining loan proceeds. After that meeting, Limited began submitting interest-only loan payments to Huntington. {¶ 12} Due to Limited's noncompliance with its payment obligations, Huntington sent Limited monthly invoices reflecting a past due balance. Huntington also transferred responsibility for oversight of the loan to Scott Rudawsky in Huntington's Special Assets Division in early October 2009. Shortly after receiving oversight responsibility for Limited's loan, Rudawsky discovered that a fire had significantly damaged the Allegheny shopping center on or about May 6, 2009. As a result of the fire, Ettayem had received an insurance proceeds check from State Auto Insurance in the amount of $139,861.82 made payable to Limited and Huntington. In October 2009, Ettayem delivered that check to a local Huntington branch, and Rudawsky learned about the fire after the check landed on his desk. {¶ 13} Huntington had difficulties communicating with Ettayem concerning the fire and the endorsement of the check. Ultimately, Huntington endorsed the check on its own behalf and as attorney in fact for Limited. Huntington then applied the insurance proceeds to Limited's outstanding indebtedness and reduced the principal amount due and owing on the loan. {¶ 14} On February 10, 2010, after Limited had failed to properly pay on the loan for eight months, Huntington sought a cognovit judgment against Limited in case No. 10 CV 2264 in the Franklin County Court of Common Pleas. The trial court granted Huntington a cognovit judgment in the amount of $381,190.59, plus interest, late fees and charges, and attorney fees, on February 17, 2010. {¶ 15} On February 25, 2010, Limited filed suit against Huntington for breach of contract, fraud, and conversion in case No. 10 CV 3000. Limited alleged that Huntington: (1) breached the loan documents by failing to disburse the totality of the loan funds, (2) misrepresented that it would disburse the entire loan amount when it never intended to do so, and (3) converted the $139,861.82 insurance proceeds check. {¶ 16} At the same time it filed its complaint, Limited moved for a preliminary injunction ordering Huntington to give Limited the fire insurance proceeds. While the trial court did not grant Limited the exact relief it sought, the trial court decided the motion in Limited's favor. In a judgment dated December 19, 2011, the trial court ordered Huntington to deposit $139,851.82 with the Franklin County Clerk of Courts until the court could resolve who the money belonged to. {¶ 17} On February 6, 2012, the Franklin County Treasurer filed a foreclosure action against Limited in case No. 12 CV 1454 with regard to the Allegheny property. The complaint named Huntington as a defendant. Huntington filed a cross-claim against Limited that also sought foreclosure and, in addition, asked for the appointment of a receiver. The trial court appointed a receiver for the Allegheny property on February 26, 2012. {¶ 18} On February 8, 2012, Huntington filed a foreclosure action against Limited in case No. 12 CV 1602 with regard to the Central Avenue property. Again, Huntington requested a receiver. The trial court appointed a receiver for the Central Avenue property on February 15, 2012. With the trial court's approval, the receiver sold the Central Avenue property on August 29, 2012. The receiver deposited the proceeds of the sale, $109,859.36, into his escrow account. {¶ 19} On Limited's motion, the trial court consolidated Limited's action against Huntington (No. 10 CV 3000) with the two foreclosure actions (case Nos. 12 CV 1454 and 12 CV 1602). The consolidated case also included case No. 12 CV 6175, a creditor's bill action Huntington filed against Limited to reach Limited's interest in a check in the amount of $40,440.07 issued by State Auto Insurance as a result of the fire. {¶ 20} On August 30, 2012, Limited moved to vacate the cognovit judgment granted against it in case No. 10 CV 2264. The trial court granted the motion because the attorney confessing judgment failed to present the original warrant of attorney to the court at the time the attorney made the confession pursuant to R.C. 2323.13(A). After vacating the February 17, 2010 judgment, the trial court granted the attorney confessing judgment 14 days to produce the original warrant of attorney. The attorney complied with the trial court's order. Consequently, on February 27, 2013, the trial court granted Huntington a cognovit judgment in the amount of $521,052.41, plus interest, late fees and charges, and attorney fees. The amount of damages owed increased from $381,190.59 to $521,052.41 because Huntington had to pay to the Franklin County Clerk of Courts the fire insurance proceeds originally applied to the loan balance."
  },
  "outcome": {
   "amount": 1374413.88,
   "amountIsTheRequestedAmount": false,
   "date": "2022-10-13",
   "description": "After a January 2017 bench trial the court entered judgment for Huntington in all four actions, rejected the borrower's claims, held the cognovit judgment could not be collaterally attacked and that Huntington was entitled to recover the full amount of the cognovit note, $1,374,413.88 (per diem $97.69733), and later awarded Huntington $928,593.73 in attorney fees and expenses. The Tenth District affirmed.",
   "attorneysFeesAtTrial": 928593.73,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 1374413.88,
   "finalNote": "Affirmed in full."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "aesthetic-elements-v-meera-enterprise-2025",
  "source": {
   "caseName": "Aesthetic Elements, Inc. v. Meera Enterprise, LLC",
   "court": "Iowa Court of Appeals, on appeal from the Iowa District Court for Linn County",
   "docket": "No. 23-1250",
   "decided": "2025-01-09",
   "url": "https://storage.courtlistener.com/pdf/2025/01/09/aesthetic_elements_inc._v._meera_enterprises_llc.pdf",
   "excerptNote": "documentText is verbatim from Part I (Background Facts and Proceedings) through the denial of Meera's summary-judgment motion, plus the trial testimony in footnote 1 about what Meera paid the replacement roofer. Removed: the opening summary, the sentences reporting the special verdicts and the liquidated-damages award, the JNOV ruling, and all appellate analysis (including the lost-profits discussion, which restates the award). The footnote marker was removed. Whitespace and page-number artifacts normalized only."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Aesthetic Elements, Inc., an insurance-restoration contractor, suing Meera Enterprise, LLC, the owner of a hotel in Cedar Rapids, Iowa, in the Linn County District Court for breach of a service agreement (and alternatively unjust enrichment) after Meera had another contractor perform the storm repairs to its hotel. Meera's summary-judgment motion has been denied and the case is set for a jury trial. The facts below are from the record.",
   "documentText": "Meera Enterprise, LLC operates a hotel in Cedar Rapids, Iowa. On August 10, 2020, a powerful windstorm carved a path of destruction through Cedar Rapids and the surrounding area. Among the affected properties was Meera’s hotel. Meera promptly opened a claim with its insurer, West Bend Mutual Insurance Company. It then turned to coordinating repairs.\n\nOn August 13, Meera’s owners—Dheeraj Julka and Rajinder Singh— arranged a meeting with Aesthetic Elements, Inc., a contractor specializing in “insurance restoration” projects. Julka and Aesthetic Elements were working together on a hail damage claim for another hotel owned by one of Julka’s other entities. During that meeting, representatives for Meera and Aesthetic Elements executed a one-page, standardized “Service Agreement” prepared by Aesthetic Elements. Under the service agreement, Meera retained Aesthetic Elements “as general contractor of record for the purpose of inspecting, evaluating and creating an estimate for the scope of work necessary to repair or replace the damage” to Meera’s hotel. The service agreement also provided: If [Meera’s] insurance company (the “Insurer”) approves a claim for the Work (the “Claim”), [Meera] acknowledges and agrees that [Meera] shall promptly enter into a Construction Agreement with [Aesthetic Elements] to set forth the terms and conditions upon which [Aesthetic Elements] shall perform the Work. The cost of the Work shall be equal to the amount of the replacement cost value authorized by the Insurer (including all overhead and profit), plus the insurance deductible which shall be paid by [Meera] to [Aesthetic Elements] (the “Agreed Price”). If Meera failed to enter a construction agreement or authorize repairs following approval of the claim, the service agreement required Meera to pay Aesthetic Elements “twenty percent . . . of the replacement cost value of the Claim.”\n\nAccording to Aesthetic Elements, these terms were designed to facilitate an efficient relationship between contractor, customer, and insurer. Project manager Cody Langan testified that preparing an estimate and negotiating the scope of work is “50 percent” of an insurance restoration project. The scope of work, according to Langan, sets out “what needs to be done . . . to put the property back to its pre- loss condition while maintaining current warranties, building code, [and] manufacturer specifications.” Langan testified that the structure of the service agreement gave Aesthetic Elements flexibility to negotiate necessary repairs while capping Meera’s out-of-pocket costs at the price of its deductible. Julka testified that, based on his review of the service agreement, he understood Meera was hiring Aesthetic Elements to “fix the roof” on its hotel. Immediately after the parties signed their service agreement, Aesthetic Elements got to work evaluating the damage to the hotel. Workers spent multiple days inspecting the roof membrane and conducting temporary repairs. On September 4, Aesthetic Elements submitted an eighty-three-page inspection report to West Bend comprised of pictures that Langan took the month before. Although Langan began preparing a scope of work around the same time, he did not complete it until October 15.\n\nMeanwhile, Meera was talking to another contractor—North-West Roofing. A lead generator from North-West had contacted Meera after the derecho and arranged a meeting between Meera and one of North-West’s project managers. On September 5, North-West started a scope of work for Meera, which it completed five days later. The scope of work was revised later in September as North-West communicated with Meera’s claims representative at West Bend. During this same time, Langan was also communicating with the claims representative, emailing him on September 14 “to see where we are at with this claim?” The representative responded, “Cody[,] I know we . . . emailed back and forth before and I know you’re a contractor. What company are you with?” Langan answered, “I am with Aesthetic Elements, Inc. [W]e have been contracted by the insured to complete their repairs. I will also re[-]attach a copy of our contract.”\n\nOn October 6, Meera signed an agreement with North-West to begin repairs on the hotel. Aesthetic Elements was unaware. It proceeded to submit its completed scope of work to a public adjuster identified by Julka the day before the contract with North-West was signed. Langan testified that once a public adjuster is involved, the insurance company and contractor cannot communicate: “all correspondence from a contractor goes through that public adjuster.” Langan testified that he did not learn about North-West’s involvement until sometime in November, when his brother and owner of Aesthetics Elements, Steven Langan, saw people at work on the roof of the hotel.\n\nWest Bend ultimately approved a claim for $461,645 in wind damage to Meera’s property. Repairs were completed by North-West. Meera never signed a construction agreement with Aesthetic Elements, and Aesthetic Elements was never paid. In November 2021, Aesthetic Elements sued for liquidated damages, alleging Meera violated the terms of the service agreement by “failing to allow Aesthetic Elements to perform any and all work to the [p]roperty as approved and agreed to by West Bend.” Aesthetic Elements also asserted a claim for unjust enrichment.\n\nMeera sought summary judgment, arguing, among other things, that the service agreement was not supported by consideration and was an unenforceable “agreement to agree.” Meera also challenged the liquidated damages provision as an invalid penalty. The district court denied the motion.\n\nJulka testified that Meera paid North-West $195,000 to repair the “main roof” at the hotel. Meera spent some of the remaining insurance money to make other repairs and pay off a loan on the hotel."
  },
  "outcome": {
   "amount": 93329.0,
   "amountIsTheRequestedAmount": false,
   "date": "2025-01-09",
   "description": "After a four-day trial the jury found a valid contract, breach by Meera, and no proven affirmative defenses, and awarded Aesthetic Elements $93,329 in liquidated damages under the service agreement's 20%-of-replacement-cost clause (an unjust-enrichment award was precluded by the contract recovery). JNOV was denied, and the Iowa Court of Appeals affirmed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 93329.0,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Contractor / Design Professional",
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "windsor-tower-v-speedy-maintenance-2024",
  "source": {
   "caseName": "Speedy Maintenance Service, L.L.C. v. Windsor Tower, L.L.C., et al.",
   "court": "Court of Appeals of Ohio, Second Appellate District (Montgomery County)",
   "docket": "C.A. No. 29996, 2024-Ohio-5841 (Trial Court Case No. 2021 CV 01747)",
   "decided": "2024-12-13",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2024/2024-Ohio-5841.pdf",
   "excerptNote": "documentText is verbatim from Part I (Procedural History and Facts): the pleadings and lien bond (paragraphs 2-5) and selected bench-trial testimony of both sides (paragraphs 6-8, 11, 15-16, 19-21, 27-31, 34, 39-41, 44), trimmed for length. Removed: paragraph 1 (which states the award), paragraph 45 (the trial court's judgment and amounts), and all appellate analysis; other testimony paragraphs were omitted only for length. Whitespace and page-number artifacts normalized only."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the owner, Windsor Tower LLC (with Windsor Construction Services LLC), of a 14-story commercial building at 40 West 4th Street in Dayton, Ohio, in the Montgomery County Common Pleas Court, where the terminated concrete-restoration contractor for its parking structure, Speedy Maintenance Service LLC, sues for breach of contract, unjust enrichment and foreclosure of a mechanics lien, and Windsor counterclaims for breach of contract and slander of title. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "{¶ 2} On April 29, 2021, Speedy filed a complaint in the Montgomery County Common Pleas Court against Windsor Tower, Windsor Construction, and the Montgomery County Treasurer (“Treasurer”), asserting claims for: 1) breach of contract, 2) unjust enrichment, 3) foreclosure of mechanics lien, and 4) violation of R.C. 4113.61. The fourth claim was withdrawn by Speedy during trial. {¶ 3} The Treasurer filed an answer asserting its interest in real estate taxes and assessments if the property were sold. Windsor filed a Civ.R. 12(B)(6) motion to dismiss, which the trial court overruled. {¶ 4} On January 26, 2022, the parties filed an agreed application to approve a bond to discharge the mechanics lien filed by Speedy related to the third claim for relief, which the trial court approved. On February 15, 2022, Windsor Tower and Windsor Construction filed their answer and counterclaim, asserting counterclaims for breach of contract and slander of title.\n\n{¶ 5} The matter proceeded to a bench trial on June 15, 2023, and November 9, 2023. The following testimony was presented at trial.\n\n{¶ 6} Otis Stevens, the managing member of Speedy, testified that Speedy was a restoration contractor that dealt with masonry and concrete restoration and had been in business for about 30 years. Stevens became acquainted with Windsor Construction through Alexius Dorsey, the owner, whom Stevens knew as “Alex.” Dorsey thought Stevens might be interested in a renovation project, which later turned out to be a parking structure at 40 West 4th Street in Dayton, Ohio. The building project was a large commercial building, about 14 stories tall, that had a parking garage at the rear with 6 parking levels. The building was a concrete structure with a rain sweep veneer on the exterior. When Stevens and Dorsey walked through the garage, Stevens said he was interested in doing the project and agreed to do it. {¶ 7} Speedy was commissioned to restore the surface parking portion of the garage structure. The surface was made of concrete and rebar, and Speedy was charged with removing the rusted steel and the spalling concrete as laid out by the engineer in a project manual provided by Windsor. Speedy received specification sheets, and its employees took classes on how to install to the manufacturer’s specifications. Speedy and Windsor talked comprehensively about how to proceed, including meeting with the product manufacturer to learn how to meet the manufacturer’s standards. Stevens explained that it was not uncommon to have product manufacturers involved to ensure their products were installed correctly to certify the warranty on the product. Windsor provided several items needed for the construction because they wanted to be involved in controlling multiple aspects of the project. {¶ 8} No formal bid for the project was submitted by Speedy, although Stevens stated he wrote up an estimate. The purported estimate was never signed and was not introduced at trial. Speedy prepared a notice of furnishing, which identified the project as 40 West 4th Street Garage Improvement and stated that Speedy would furnish or perform the following: demolition and site protection, shoring and forming, steel repairs, slab and joist repairs, column repairs, overhead repairs, and material removal and disposal. The notice did not give an estimate for the cost of the work. Stevens stated that he negotiated the terms of the contract with Dorsey, and they had an oral agreement. According to Stevens, Speedy was expected to do what the engineer had reported and repair all the concrete surfaces on each floor, which included the deck on the sixth floor and repairs on the fifth, fourth, and possibly the third floors. Stevens expected to be paid $85,000 for the fifth floor, and then $75,000 for the other floors. Stevens explained that the extra $10,000 for the fifth floor was because of training and mobilization. It was anticipated the work would take about four to five weeks per floor, and Speedy was expected to work six or seven days per week to meet the scheduling, which it did. On average, Speedy had five to six men on site daily. Joe Circle, from Windsor, was also on site daily.\n\n{¶ 11} On September 16, 2019, Speedy submitted invoice number 1713 to Windsor, identified as services on “1 floor @ $75,000” for work performed on the fifth floor. Stevens testified that Windsor paid $5,000 for that invoice and then an additional $10,000 later.\n\n{¶ 15} On October 11, 2019, Speedy sent Windsor invoice number 1717 for $23,007.60, which included additional services that Speedy had provided. A change order was submitted breaking down the $23,007.60 into labor hours and costs. By that time, there was another subcontractor, later identified as Juan Osario, involved in the project doing masonry work. Osario was working on floors one, two, and three of the garage but was not doing any work on the upper floors. Speedy removed concrete and debris for Osario and also took a load or two to the dumpster, which Speedy billed as time and material on the invoice. {¶ 16} On October 15, 2019, Circle emailed Stevens stating that, before Windsor would release any money, Speedy needed to complete the full slab and joint repair on the fifth floor. Circle expressed concerns that Speedy had invoiced for 44% of the total agreed price but that only 10% of the work had been completed. Stevens sent an email response that same day explaining that they had an agreement “between 75 and 80,000 per floor” and Speedy had far exceeded Circle’s 10% estimate to be entitled to the money billed. According to Stevens, Speedy was about 80% done with the concrete slab and ceiling deck, including the main vertical columns, which was the majority of the work. Stevens claimed Speedy was eligible for a draw based on work completed, and he demanded payment.\n\n{¶ 19} Invoice number 1720 was sent to Windsor on October 29, 2019, requesting the amount of $15,000. According to Stevens, this included additional work done by Speedy, including cleanup and debris removal, that was not part of the agreed flat price per floor. A final invoice was sent to Windsor dated November 4, 2019, invoice number 1722, requesting a balance due of $8,000. Stevens claimed this invoice was for work done off the fifth-floor contract price. {¶ 20} On November 6, 2019, Stevens received a letter stating that Speedy was being terminated for cause. The termination letter ordered Speedy to “cease all work on both the DP&L and 40 West 4th Garage.” According to Stevens, Speedy had been working on more than one project for Windsor and there had been an issue with the DP&L location, not the garage. Stevens denied receiving any notification of default or notice to cure default prior to receiving the termination letter. The following day, Stevens responded to the termination letter and indicated that Windsor had only paid $19,000 of the $85,000 contract and demanded payment of $66,000. {¶ 21} Stevens testified that as of November 6, 2019, he estimated Speedy had invoiced Windsor for about $64,000, but Windsor had only paid somewhere between $39,000-42,000. Tr. 95. For the final November 4, 2019 invoice, Windsor changed the $8,000 invoiced amount to reflect approval for $4,444.44 of work completed with a 10% reduction resulting in a payment of $4,000. Speedy filed a mechanics lien on the property for $66,000, which was recorded with the Montgomery County Recorder.\n\n{¶ 27} Circle testified that Speedy never submitted a bid for the job. Circle made multiple requests of Speedy for a signed contract in order to continue working on the project, but Speedy never signed the written contract. Circle testified that Stevens was reluctant to sign it. The budget for the project was $75,000 per floor of the garage, and the parties understood that to mean they were not to exceed $75,000. This would have included both cantilevered levels and the ramps for that floor. They were proceeding with the fifth floor as a trial level because Speedy’s personnel were getting trained to do it. The work itself was a bit ambiguous in scope because some defects were identified as the work progressed. {¶ 28} According to Circle, Speedy’s work was not performed in a consistent and timely manner. Attendance was spotty, and Speedy failed to meet a single deadline. Speedy’s workers were not consistently present, workers would show up at different times, and they worked on different areas than were requested. Circle repeatedly asked for updates and tried to review the expected timelines with Stevens to no avail. The timeline was based on the need to put forms up, schedule the concrete, and schedule special inspections. There was a timeline of eight weeks per floor in the contract. Speedy initially worked on the first half of the upper fifth floor parking deck surface. By the time Speedy was terminated from the project, more than eight weeks later, it had not even completed the parking deck surface demolition on the upper level of the fifth floor. {¶ 29} On October 15, 2019, Circle sent an email to Speedy stating that he was “concerned about the rate of production.” Circle was distressed that Speedy was both overbilling them and behind schedule. Circle and Dorsey were at the construction site regularly working, training, and assisting Speedy. Circle also had safety concerns for the work performed by Speedy. Due to the condition of the structure, sections of columns, beams, and major sections of flooring had to be cut out to get repaired. Based on the engineered specifications regarding structural integrity, they needed to have support from at least two levels below where they were working. Failing to properly shore up their work would have resulted in the building collapsing and destroying the structure. Speedy did eventually correct the shoring issues. {¶ 30} On October 29, 2019, Circle sent Stevens another email in which he had measured and calculated the square footage that had been completed. At that time, Circle measured 1,626 square feet of demoed slab joist that was not clean and 185 square feet of demoed slab joist that was clean. Whether it was clean determined whether it was ready for the bonding agent to be applied, which had to be done prior to pouring the concrete. There was 831 square feet of completed slab joist repaired, meaning that the concrete had been poured back. As of October 29, 2019, Speedy did not pour any additional concrete. The total surface area for the fifth floor was 10,000 square feet. Circle estimated that Speedy completed only about 20% of the fifth floor. However, after Speedy was terminated, Circle had to replace all of Speedy’s work. {¶ 31} Speedy was sent a termination letter that related to multiple projects. Circle testified that Speedy had been terminated for overall lack of performance, inability to bid the work, no signed contract, and some egregious behaviors. By the time it was terminated, Speedy had billed about $38,000. A final invoice dated November 4, 2019, was received requesting an additional $8,000, some of which was paid. The total amount paid to Speedy by Windsor for this project was $44,300.\n\n{¶ 34} Juan Osorio, who had been working on different floors of the garage, redid all the work that Speedy had done. Windsor paid Osorio a total of $65,300 for the work he completed on the fifth floor of the garage.\n\n{¶ 39} Dorsey made the decision to terminate Speedy from the job based on how far behind Speedy was in completing the project and Speedy’s inappropriate billing. After Speedy was terminated, Dorsey inspected the work and concluded that nothing was fully completed. There were several things that were in the process of being completed, but nothing was fully finished. When Speedy was terminated, Windsor had paid Speedy around $38,000. {¶ 40} Dorsey was never served with a mechanics lien. Rather, when Windsor was closing on the loans for its property, a title agency discovered the mechanics lien. The mechanics lien was dated November 6, 2019, and alleged that $66,000 was owed to Speedy. According to Dorsey, $66,000 was never a number that fit the work. When Dorsey learned of the mechanics lien, he contacted Stevens and demanded that the lien be removed, which Stevens refused. As a result of the mechanics lien, the closing did not go through, and Windsor lost a bridge lender for its loan. Between the time that the loan closing was to originally happen and the time that Windsor obtained a new bridge lender and closed, the interest rate had increased markedly. Based on the increase in interest on the loan, Dorsey had to pay over a million dollars more than he originally anticipated. In order to complete the closing, Dorsey had to bond the lien off because Speedy refused to remove it and the lenders would not close with a lien on the property. Windsor made two payments for a total of $3,960 to pay for the bond. {¶ 41} Dorsey had worked with Osario on several prior ventures before the 40 West 4th Street project. Once Dorsey determined that Speedy was unable to handle the work on this project, Dorsey hired Osario to start work on the garage’s lower levels. Osario started work on the lower floors while Speedy worked on the fifth floor. When inspections were done after Speedy was terminated, it was discovered that Speedy had done the work incorrectly. Baum had indicated it was poor craftsmanship and Speedy’s work needed to be repaired and replaced. Dorsey decided to have Osario redo the fifth floor. Because nothing Speedy had worked on was fully completed, it was hard for Dorsey to estimate how much work Speedy had actually completed by the time it were terminated. However, Dorsey estimated it was probably around 20%. Although Windsor paid Speedy $44,300 to restore the fifth floor, it received no benefit from Speedy’s work because everything had to be redone.\n\n{¶ 44} On cross-examination, Stevens conceded that it was possible one or two payments from Windsor may not have been included in the $19,000 total. According to Stevens, the change order was the only documentation that Speedy was billing for time and materials; there was no other agreement. The $66,000 Speedy claimed Windsor owed was based on the contract price and the time and materials billings."
  },
  "outcome": {
   "amount": 48260.0,
   "amountIsTheRequestedAmount": false,
   "date": "2024-12-13",
   "description": "After a two-day bench trial the court found for Windsor, awarded it $44,300 (the amount it had paid Speedy) plus prejudgment and postjudgment interest on its breach-of-contract counterclaim and $3,960 on its slander-of-title counterclaim (bond premiums), a total of $48,260, voided Speedy's $66,000 mechanics lien and denied Speedy's claims. The Second District affirmed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 48260.0,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Owner / Developer",
  "category": "construction-defect",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "can-iv-packard-square-v-schubiner-2021",
  "source": {
   "caseName": "Can IV Packard Square, LLC v. Craig Schubiner (and BCL Properties Limited Partnership and 305 Associates, LLC, proposed intervenors)",
   "court": "Michigan Court of Appeals (unpublished), on appeal from the Oakland County Circuit Court",
   "docket": "Nos. 352510, 354185, 354821, 354186 (LC No. 2018-167408-CB)",
   "decided": "2021-04-29",
   "url": "https://www.courts.michigan.gov/4a4fa7/siteassets/case-documents/uploads/opinions/final/coa/20210429_c352510_72_352510.opn.pdf",
   "excerptNote": "documentText is verbatim from Part I (Background) through the parties' cross-motions for summary disposition, plus sentences from Part II that state the parties' positions (the guarantor's material-alteration and credit-bid arguments, and the subcontractor liens and the borrower's answer from the related foreclosure case). Removed: the opening paragraph with the dispositions, footnotes 1-4 and their markers, the sentences stating the trial court's summary-disposition ruling and the judgment amount, the lender's affidavit accounting (which states the amount), the postjudgment collection history, and all appellate holdings. Note: the judgment was entered on cross-motions for summary disposition, not after trial."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lender, Can IV Packard Square, LLC, suing Craig Schubiner in the Oakland County Circuit Court, Michigan, on his guaranty of a construction loan to Packard Square, LLC for a retail and residential development in Ann Arbor, after the borrower's bankruptcy filings triggered full-recourse provisions and the project was completed by a receiver and sold at foreclosure; Schubiner denies liability and counterclaims for breach of contract. Cross-motions for summary disposition are pending. The facts below are from the record.",
   "documentText": "This case arises out of a nearly $54 million loan that plaintiff made to defendant’s company, Packard Square, LLC (“Packard Square”), in October 2014 to finance the construction of a luxury retail and residential development project in Ann Arbor, Michigan. As Packard Square’s principal, defendant signed a guaranty contract as security for the construction loan. After multiple construction delays, plaintiff sued Packard Square in Washtenaw Circuit Court in October 2016 (“the Washtenaw action” or “the Washtenaw case”); plaintiff requested the appointment of a receiver to manage the construction project and sought foreclosure on the mortgage that Packard Square had granted to plaintiff to secure the loan. See Can IV Packard Square, LLC v Packard Square, LLC, unpublished per curiam opinion of the Court of Appeals, issued January 23, 2018 (Docket No. 335512), pp 1-4 (summarizing the procedural history of the Washtenaw action).\n\nAt the outset of the Washtenaw action, the trial court granted plaintiff’s request for the appointment of a receiver, and this Court affirmed the appointment of the receiver. Id. at 4, 11. Following the issuance of this Court’s opinion affirming the Washtenaw Circuit Court’s order appointing the receiver, Packard Square applied for leave to appeal in our Supreme Court, which denied the application for leave to appeal. Can IV Packard Square, LLC v Packard Square, LLC, 503 Mich 860 (2018).\n\nMeanwhile, during its appeal of the receivership order, Packard Square filed for bankruptcy. The bankruptcy court dismissed the bankruptcy case and noted that “[a] dismissal will avoid any needless confusion or doubt about the ability of the Receiver and the state court in the receivership case to carry on, as if no bankruptcy had been filed.” In re Packard Square, LLC, 575 BR 768, 783 (Bankr ED Mich, 2017). In affirming the bankruptcy court’s dismissal of the bankruptcy petition, the United States District Court for the Eastern District of Michigan stated that “the [Washtenaw Circuit Court] found, and the Michigan Court of Appeals affirmed those findings, that [Packard Square] had mismanaged the Project in several different ways, leading to delays and missed milestones.” In re Packard Square, LLC, 586 BR 853, 867 (ED Mich, 2018). After the appointment of the receiver, the Washtenaw case proceeded with discovery. Plaintiff eventually moved for summary disposition on its foreclosure claim, seeking foreclosure both on Packard Square’s mortgage and on a higher priority mortgage securing an additional loan that plaintiff had made to the receiver to complete construction. See Can IV Packard Square, LLC v Packard Square, LLC, 328 Mich App 656, 658; 939 NW2d 454 (2019). In September 2018, the trial court granted summary disposition to plaintiff on its foreclosure claim and “entered a judgment of foreclosure authorizing the sale of the property at a sheriff’s sale.” Id. at 658. The property was sold to plaintiff for a $75 million credit bid at the November 15, 2018 foreclosure sale, and Packard Square filed an appeal from the judgment of foreclosure. See id. at 658-660. This Court dismissed Packard Square’s appeal as moot after Packard Square failed to redeem the property within the redemption period as provided in MCL 600.3140. Can IV, 328 Mich App at 658, 666. Following the issuance of this Court’s opinion dismissing the appeal, Packard Square applied for leave to appeal in our Supreme Court, which denied the application for leave to appeal. Can IV Packard Square, LLC v Packard Square, LLC, 505 Mich 1001 (2020).\n\nOn February 15, 2019, the Washtenaw Circuit Court entered an order granting summary disposition to plaintiff regarding counterclaims that Packard Square had asserted against plaintiff in the Washtenaw case. Packard Square filed an appeal as of right from that order in Docket No. 348857. On July 11, 2019, the Washtenaw Circuit Court entered an order approving the receiver’s final report, discharging the receiver’s bond, and discharging the receiver, and Packard Square filed an appeal as of right from that order in Docket No. 350519. Those two appeals were consolidated, Can IV Packard Square, LLC v Packard Square, LLC, unpublished order of the Court of Appeals, entered December 10, 2019 (Docket No. 348857); Can IV Packard Square, LLC v Packard Square, LLC, unpublished order of the Court of Appeals, entered December 10, 2019 (Docket No. 350519), and were submitted to a case call panel of this Court on January 6, 2021. On July 30, 2018, plaintiff filed the present action against defendant for breach of the guaranty contract. Plaintiff alleged that, under the terms of the guaranty contract, defendant had agreed to be liable for the full amount of plaintiff’s loan to Packard Square upon the occurrence of certain recourse triggers. Among those recourse triggers were the filing by Packard Square or defendant of a voluntary bankruptcy proceeding and opposition by Packard Square or defendant to a motion of plaintiff for relief from the automatic bankruptcy stay. Plaintiff asserted that, through bankruptcy filings made by defendant on behalf of Packard Square, defendant breached the guaranty contract and triggered the recourse provisions of the guaranty contract. Those actions made defendant liable to plaintiff for the full amount of the loan, including all principal, interest, advances, fees, and charges.\n\nOn December 17, 2018, defendant filed an answer denying liability and asserted affirmative defenses and counterclaims. Among his affirmative defenses, defendant asserted that plaintiff had breached the loan agreement with Packard Square first, making it impossible for Packard Square and defendant to perform their contractual obligations. Defendant further asserted that plaintiff had altered the loan agreement and impaired collateral. In his counterclaims, defendant alleged that, when the loan agreement was made in October 2014, he deposited $1 million into a City National Bank account in which plaintiff held a security interest in accordance with ancillary agreements known as a deposit accounts control agreement (“DACA”) and a pledge agreement. Defendant also asserted that plaintiff’s refusal to pay certain subcontractors in August 2016 led to the filing of liens by those subcontractors. Plaintiff’s refusal to pay construction costs in the summer of 2016 made it impossible for Packard Square to continue construction. On February 21, 2017, months after the receiver had been appointed in the Washtenaw action, plaintiff sent a letter to defendant asserting that defendant was responsible for paying or removing liens on the construction project. On February 24, 2017, plaintiff instructed City National Bank to wire the funds in the DACA account to plaintiff, and City National Bank wired those funds, which amounted to $1,000,885.33, to plaintiff on the same date. Defendant asserted a breach of contract counterclaim, alleging that plaintiff improperly declared defaults by Packard Square when there were no defaults, that defendant had no obligation to pay off the liens, that plaintiff had caused the liens by failing to fund the construction, and that plaintiff had no right to instruct City National Bank to transfer the funds from the DACA account to plaintiff.\n\nThe parties filed competing motions for summary disposition pursuant to MCR 2.116(C)(10) regarding both plaintiff’s breach of contract claim and defendant’s counterclaims.\n\nDefendant asserts that plaintiff lacked authority to make the receiver loan secured by the receiver mortgage. According to defendant, the receiver loan and mortgage constituted material alterations of Packard Square’s original debt, thereby relieving defendant of his obligation as a guarantor of the original debt.\n\nDefendant says that, under the equitable principles applied in Werme and Ren-Cen, plaintiff’s application of its $75 million credit bid to first pay off the receiver loan should have fully discharged Packard Square’s original mortgage and relieved defendant of any liability for the loan repayment deficiency. Defendant argues that plaintiff “now owns the property and stands to recover even more money from selling the now completed development project.”\n\nAmong the reasons why plaintiff sought such relief was that Packard Square had failed to resolve certain subcontractor liens filed against the property, including a lien recorded by Gaylor Electric, Inc. (“Gaylor”), on September 29, 2016, for $916,312.91, and a lien recorded by Jermor Plumbing & Heating, Inc. (“Jermor”), on October 6, 2016, for $330,958.06. In its answer to plaintiff’s complaint in the Washtenaw case, Packard Square asserted that the liens were solely the result of plaintiff’s refusal to fund the construction."
  },
  "outcome": {
   "amount": 13992936.05,
   "amountIsTheRequestedAmount": false,
   "date": "2021-04-29",
   "description": "On cross-motions, the trial court granted summary disposition to the lender on its guaranty claim and on Schubiner's counterclaims and on December 17, 2019 entered judgment against him for $13,992,936.05 (the original-loan balance left after the lender applied its $75 million credit bid first to the receiver loan), plus attorney fees, consultant fees, continuing interest and costs. The Court of Appeals affirmed the judgment (Docket No. 352510), while vacating a separate postjudgment order on intervenors' properties.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 13992936.05,
   "finalNote": "Judgment affirmed."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "quantum-concrete-v-plaza-de-kaza-2023",
  "source": {
   "caseName": "Quantum Concrete, Inc. v. Plaza de Kaza, LLC, and Ronald A. Dykstra, d/b/a Dykstra Homes",
   "court": "Michigan Court of Appeals (unpublished), on appeal from the Kent County Circuit Court",
   "docket": "No. 361420 (LC No. 19-003189-CB)",
   "decided": "2023-09-14",
   "url": "https://www.courts.michigan.gov/4a4e27/siteassets/case-documents/uploads/opinions/final/coa/20230914_c361420_42_361420.opn.pdf",
   "excerptNote": "documentText is verbatim from Part I (Basic Facts): the bench-trial testimony of both sides, the pleadings, and the pretrial summary-disposition ruling dismissing the lien-foreclosure claim. Removed: the opening summary, footnote 1 and its marker, and the paragraphs reporting the bench-trial verdict, damages, and the sanctions ruling, plus all appellate analysis. Note: the judgment equals the unpaid final invoice, which appears in the text as the balance the owner refused to pay."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Quantum Concrete, Inc., the concrete contractor that poured the floor, sidewalk and parking-lot curbing for a retail building owned by Plaza de Kaza, LLC in Grand Rapids, Michigan, suing Plaza de Kaza and Ronald Dykstra (who engaged Quantum) in the Kent County Circuit Court for breach of contract and unjust enrichment over its unpaid final invoice; Plaza de Kaza counterclaims that the traffic-circle curbing was defective. The lien-foreclosure claim has been dismissed and the remaining claims are set for a bench trial. The facts below are from the record.",
   "documentText": "Kassra Darehshori, who was sometimes called “Kaz,” purchased a retail building on Division Avenue near 28th Street in Grand Rapids, Michigan. He testified that the building came with 9 acres of land, and he intended to develop a banquet hall in the back of the property. Darehshori created Plaza de Kaza to own that property, and he was its sole member. Testimony and evidence established that Darehshori hired an engineer, Daniel Hula, to design a parking lot for the building. Darehshori also stated that he had a longstanding relationship with Ronald Dykstra, who was a carpenter. He hired Dykstra on an hourly and as-needed basis to perform work and advise him on building projects. Dykstra testified that he assisted with renovations at the Plaza de Kaza property. He performed demolition, framed new walls, hung a drop ceiling, and helped bring the retail space up to standards. Dykstra also helped Darehshori find subcontractors for the drywall, electrical, and roofing work. He said that he typically solicited three estimates and submitted them to Darehshori, who selected the one that he wanted.\n\nDykstra had done business with Quantum when he built homes and had a good relationship with Quantum’s owner, John Trimberger. The building on Division needed a new concrete floor, and Dykstra called Trimberger and asked if he would submit an estimate. Dykstra said that he told Trimberger that the work was for “Kaz’s project” and that he would be working for “Kaz,” but Trimberger denied that Dykstra ever said he was representing Plaza de Kaza.\n\nTrimberger testified that Dykstra called him in Spring 2018 and asked him to submit an estimate for a new floor in a restaurant. It was his understanding that Dykstra, as the general contractor for the owner, hired Quantum. Trimberger sent his estimates to Dykstra, and Dykstra approved them and asked him to schedule the work. He also sent his invoices to Dykstra.\n\nTrimberger related that, after Quantum completed the floor work, Quantum submitted its invoice to Dykstra, and it was paid. Dykstra then contacted Quantum about replacing the property’s sidewalk. Dykstra accepted the estimate, Quantum completed the work, and Quantum invoiced Dykstra. Quantum received payment a few weeks later.\n\nTrimberger stated that Dykstra then called him to submit an estimate for the curb and gutter work on the parking lot. The parking lot was large and required about 3300 feet of curbing. Trimberger submitted an estimate for $94,759.50 for the curb and gutter work to Dykstra. Dykstra called him and gave him the go-ahead to begin work.\n\nQuantum’s foreman, Joseph Brooke, stated that they had problems with the curb and gutter project from the start. He stated that the concrete drainage basins were not properly placed, so the drains did not line up with the curbing. There were also problems with the parking lot’s grading. He repeatedly called Dykstra, and the excavator returned to correct some of the problems. Trimberger sent invoices to Dykstra for the parking lot work on October 1, October 15, and October 22. All invoices were paid to date. Brooke testified that the excavation work for the area of the traffic circle was in horrid shape. There was crushed concrete around one basin that was much too high, and both catch basins on the traffic circle were spun almost 90 degrees from where they were supposed to be set. Brooke would not touch it until the excavator spun the drains. The excavator eventually came out and adjusted the drains, but they were still too close to the radius point of the traffic circle’s center. Brooke ended up pouring the curbing by following the radius and then bringing the curb to the drain. That gave the curbing on that side of the traffic circle a flattened look. Trimberger stated that the last invoice that he sent to Dykstra was for the work performed from October 22, 2018 to November 6, 2018, which included work on the parking lot’s traffic circle. Darehshori stated that the traffic circle plainly did not conform to the blueprints—a “third grader,” he opined, “could have seen that it was wrong.” He described the traffic circle as having a “taco” shape. The traffic circle was, in his view, the focal point of his whole project; it was the point where customers would drop off their guests, and he wanted it done properly.\n\nDarehshori, Trimberger, Brooke, Hula, and another person met at the site on November 12, 2018, to discuss the traffic circle.\n\nBrooke stated that they discussed options for correcting the traffic circle’s appearance. He felt that the matter was merely cosmetic and that landscaping would fix it. Everyone at the meeting appeared to agree to tear out the curbing on one side of the traffic circle and raise its height, and then dovetail it down to the drain. He performed that work eight days later. Brooke said that Darehshori specifically approved the second pour.\n\nHula said that the traffic circle looked “goofy.” He explained that Quantum followed the surveyor’s stakes for the traffic circle until it got close to the basin, which was clearly misplaced. Quantum then brought the curb over to the drain without following the stakes. As a result, the traffic circle was not a circle. Quantum should have called the excavator to adjust the basin. If the excavator did not appear, the concrete contractor should have refused to pour. At the meeting on November 12, he said that it was agreed that “they were going to move the catch basin out and then bring the curb around a little more level and then slope down to the catch basin rather than adjust the catch basin.”\n\nTrimberger agreed that the traffic circle had a “taco” look from a distance because there were two high ends and two low ends to accommodate the gutters. He stated that the drains were not properly positioned as detailed on the blue prints. In any event, Trimberger felt that it was a nonissue because landscaping would conceal it. He admitted that they agreed to redo the concrete work to raise the height of the curb on the lower side and then dovetail it down to the drain at the meeting held on November 12, 2018. Darehshori called the excavator during the meeting and Darehshori told Trimberger that the excavator would be out the next day, so Trimberger assumed that the excavator would fix the drain position. When no one showed up after a week, Trimberger had his crew remove the concrete and pour new curbs consistent with what had been agreed at the meeting. His crew performed that work on November 20, 2018. In Trimberger’s view, the second pour was not a repair of defective work: it was done to placate Darehshori.\n\nAfter redoing the curbing on the traffic circle on November 20, 2018, Trimberger sought payment of the final invoice from November 6, 2018. There was conflicting testimony about the events, but there was testimony and evidence that Trimberger went to Darehshori’s office on November 28, 2018, and upset Darehshori’s staff. Darehshori, however, stated that he refused to pay the remaining $24,179.35 balance because Quantum did not correctly pour the traffic circle and not because he was angry with Trimberger.\n\nIn April 2019, Quantum sued Plaza de Kaza and Dykstra. It asserted claims of foreclosure on a construction lien, breach of contract, and unjust enrichment. Plaza de Kaza counterclaimed against Quantum for breach of contract and unjust enrichment.\n\nIn September 2020, Quantum moved for summary disposition under MCR 2.116(C)(10). Plaza de Kaza responded by moving for summary disposition of Quantum’s foreclosure claim under MCR 2.116(I)(2). The trial court agreed that Quantum failed to establish that it had a valid construction lien and dismissed that claim. As for the remaining claims and counterclaims, the trial court determined that there were questions of fact that had to be resolved at trial."
  },
  "outcome": {
   "amount": 24179.35,
   "amountIsTheRequestedAmount": true,
   "date": "2023-09-14",
   "description": "After a three-day bench trial the court found Dykstra breached his agreement with Quantum and Plaza de Kaza was unjustly enriched, and entered judgment against both for $24,179.35 (the full final invoice, no setoffs), rejecting Plaza de Kaza's counterclaims; Quantum's later motion for attorney-fee sanctions was denied. The Court of Appeals affirmed (Quantum's challenges to the lien dismissal and the sanctions ruling failed).",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 24179.35,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Contractor / Design Professional",
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "cle-venture-fund-v-coventry-2025",
  "source": {
   "caseName": "CLE Venture Fund, L.P. v. Coventry Partners, L.L.C., et al. (Coventry Courts LLC, Coventry Court LLC and John Crigler)",
   "court": "Court of Appeals of Ohio, Eighth Appellate District (Cuyahoga County)",
   "docket": "No. 114383, 2025-Ohio-2451 (C.P. No. CV-21-952010)",
   "decided": "2025-07-10",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2025/2025-Ohio-2451.pdf",
   "excerptNote": "documentText is verbatim from the Factual and Procedural History: the loan, default, forbearance and deed in lieu, the lender's complaint and demand, the trial court's summary-judgment ruling on liability (which left the property's value at transfer for trial), and the trial testimony of both valuation experts. Removed: the opening summary, the trial court's valuation ruling and scrivener's-error correction, the damages judgment amount, the fee withdrawal, the assignments of error and all appellate analysis."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lender, CLE Venture Fund, L.P., suing the borrowers Coventry Courts LLC and Coventry Court LLC and the guarantor John Crigler in the Cuyahoga County Court of Common Pleas, Ohio, on a $1.6 million development loan secured by a Cleveland property that the lender took by deed in lieu of foreclosure and later resold. Liability has been decided on summary judgment; the remaining trial is on the property's value at the date of transfer, which is credited against the debt. The facts below are from the record.",
   "documentText": "In November 2015, Coventry I and Coventry II borrowed $1,600,000 from CLE Venture Fund, L.P. (“Appellee”) to finance a property development at 9410 Hough Street in Cleveland as well as two nearby vacant parcels on Crawford and East 93rd Street (collectively, the “Property”). The loan was secured by a promissory note dated November 4, 2015, for the full amount. It was also secured by a mortgage on the property between Coventry I and Appellee. Coventry II and Crigler executed a separate guarantee for all of Coventry I’s indebtedness. The entire balance, including accrued interest, was due and payable by November 4, 2016, or May 4, 2017, if Coventry I and II extended the maturity date. Coventry I and II extended the maturity date but ultimately defaulted on the loan. Additionally, Coventry II and Crigler failed to pay the entire balance after the default, thereby defaulting on their obligation as guarantors. The parties subsequently entered into a forbearance agreement, which established that Appellee would not pursue its rights under the previous agreements as long as Appellants, among other things, paid all amounts due by September 5, 2017. Simultaneously, the parties entered into a deed-in-lieu of foreclosure agreement. Pursuant to that agreement, a deed transferring the Property to Appellee was placed in escrow during the forbearance period and was to be turned over to Appellee if Appellants failed to comply with the forbearance agreement. In addition to other terms, the parties also agreed that Appellants’ indebtedness under the loan continued after the “closing,” which was defined as “the recordation of the deed referenced in the escrow agreement,” in the event of default. Appellants subsequently failed to make payment by the forbearance deadline. On September 15, 2017, Appellee filed suit against Appellants in Cuyahoga C.P. No. CV 17-885989 (“CV 17-885989”). Subsequently, Appellee obtained the deed to the Property and recorded it on March 27, 2018. Appellee voluntarily dismissed the case in August 2019. On June 16, 2021, Appellee sold the property to a third-party buyer for $1,548,000. Nevertheless, Appellee calculated that Appellants still owed almost $2.5 million after sale of the Property, including default interest and collection costs. Appellee filed the instant action, Cuyahoga C.P. No. CV 21-952020, on August 23, 2021, alleging breach of the note and guaranty against the Appellants and requesting $2,446,775.94 in damages, plus suitable attorney fees.\n\nBoth parties filed for summary judgment in July 2022. The trial court granted Appellee’s motion with respect to liability noting: (1) [Appellants] are in material breach of the loan documents, as [appellants] failed to pay amounts due and owing to [Appellee] prior to the expiration of the forbearance period on 09/05/2017. (2) As a matter of contract interpretation, the court finds that pursuant to § 4 of the deed-in-lieu of foreclosure agreement, as soon as [Appellee] exercised its rights under the deed-in-lieu by taking title to the property on 03/27/2018, the fair market value of the property at the time of such transfer needed to be recognized, applied, and credited towards the outstanding indebtedness of the [Appellants] at the time of such transfer. See deed-in-lieu of foreclosure agreement, § 4 (“as of the closing, lender shall credit the indebtedness owing under the loan documents in amount equal to the sale value or funds received for the property, minus any closing costs of the lender”). (3) “As of the closing” is the operative language of this agreement. As [Appellants] point out, no language in the deed in lieu of foreclosure agreement requires the [Appellee] to sell or otherwise liquidate the property. Indeed, § 6 of the deed in lieu of foreclosure agreement gives the lender the immediate right to see/transfer the property for its own account. § 6 does not impose an obligation upon the [Appellee] to subsequently liquidate the property and then credit the sales proceeds of the property, at the time of sale, to [Appellants’] preexisting indebtedness. (4) Thus, when [Appellee]/lender sold the property to a third-party buyer on 06/16/2021, recouping $1,548,000.00 in sales proceeds, these proceeds were for the [Appellee]/lenders “own account” and were intended to lessen any possible deficiency remaining on amounts owed under the loan documents post-closing on 03/27/2018. (5) Accordingly, as stated previously by the court in its 1/28/2019 Journal Entry in case no. CV-17-885989, a genuine issue of material fact still exists, as to the issue of damages only. The trial court denied Appellants’ motion for summary judgment finding that Appellee’s claims were not barred by res judicata as there was no final judgment in CV-17-885989. Additionally, the court found that Appellants’ argument that the transfer of the property resolved the debt lacked merit because the parties’ agreements stated the debt survived the transfer.\n\nThe case was continued for trial, solely to determine the retrospective value of the Property on the date of transfer, March 27, 2018. The value of the Property would offset the amount Appellants owed on the debt.\n\nThe trial commenced in December 2024. Appellee called Robert Vodinelic (“Vodinelic”) as their expert witness. He worked with a colleague, Katherine Boro, (“Boro”), to prepare the expert report. Vodinelic testified that he, in collaboration with Boro, provided an expert opinion on the retrospective market value of the Property as of March 27, 2018. Vodinelic identified the three parcels of the Property and noted that two were vacant lots and one had an abandoned “shell” apartment building. To his knowledge, the building had been vacant for ten years or more and showed signs of deterioration and neglect, with broken and boarded windows and boarded doors. The building was also subject to a Department of Housing and Urban Development (“HUD”) restriction. Vodinelic testified that a HUD restriction would cap rent at a certain level. Such a restriction, Vodinelic testified, could limit the desirability of an asset because it limited the amount of income an owner could receive. Vodinelic testified that there are three methodologies used to appraise properties: the cost approach, the sales comparison approach, and the income capitalization approach. Vodinelic testified that he used the sales comparison approach in this case. He did not use the cost approach because with an older asset like the one in question, there were a number of subjective variables, e.g., determining depreciation and factoring in deferred maintenance, i.e., repairs necessary to rehabilitate the building, which made it difficult to determine a reliable value. With respect to the income capitalization method, Vodinelic testified that approach is typically used when the asset is functional. With an abandoned building, he would need to factor in the costs to make the property functional and then, once it is functional, determine how long it would take to lease units. Those estimates would be challenging, especially for a property that had not been in operation for a decade or more. Utilizing the sales comparison approach, Vodinelic testified that he and Boro identified properties similar to the Property, considering and adjusting for differences in the age, condition, size, and other relevant factors to determine a valuation for the three lots. Ultimately, Vodinelic testified that the retrospective value of the Property was $1,310,000. Finally, Appellee’s counsel established that Vodinelic was unaware that the HUD restriction had been lifted. Vodinelic was aware that the HUD restriction was placed in a 2008 deed and that a HUD restriction typically remains for 20 years but was unaware the HUD restriction was not included in the deed when Appellee sold the Property in 2021. During this testimony, Appellee showed Vodinelic the deed for the 2021 sale, which was identified and marked as Exhibit C. At the end of the trial, Appellants objected to the admission of Exhibit C and asked that any testimony related to the exhibit be stricken from the record. The trial court did not admit the exhibit but refused to strike the testimony. During cross-examination, Appellants questioned Vodinelic about his participation in the appraisal process, focusing on the work he did versus the work Boro did. Initially, Appellants suggested that Vodinelic did not write the report, noting that his role was “more as a supervisor, as a proofreader, and making sure you were getting your client’s goals met.” In response, Vodinelic added that he worked as a collaborator, noting that all of those roles go into a “big melting pot.” Further, Vodinelic denied creating a report designed to achieve a perceived goal of lowering the valuation. During a later question, Appellants characterized Boro as the author of the report. Appellee objected arguing that the testimony did not establish that Boro was the sole author of the report. In response, Vodinelic testified: We collaborated on it together. She may have typed the words. Or when it comes to the analysis, we worked on the analysis together. We’re talking about the challenges of the property, the challenges of the market, the approach to value we’re going to be using. So even if she’s the one who typed it, it’s not like she was working in a vacuum and I only saw the appraisal before it was completed. The trial court overruled the objection after additional cross- examination of the witness. During Vodinelic’s testimony, Appellants did not object to the admission of his testimony nor challenge the admission of the expert report. Furthermore, contrary to Appellants’ assertion at oral argument, they did not move to strike Vodinelic’s testimony in its entirety. They only moved to strike any testimony related to the 2021 deed, Exhibit C. Appellants called Donald Durrah (“Durrah”) as their expert witness. Durrah testified in detail about his methodology and his familiarity with the northeast Ohio market. Durrah opined that knowledge of the region was essential to proper appraisal. Durrah used the sales comparison and the income capitalization methods to arrive at a valuation. However, Durrah was unaware that there was a HUD restriction on the property and did not factor that information into his calculations. Durrah valued the Property at $2,030,000 by using both valuation methods, giving the valuations a weight in terms of viability, and calculating a weighted average."
  },
  "outcome": {
   "amount": 1735579.45,
   "amountIsTheRequestedAmount": false,
   "date": "2025-07-10",
   "description": "After a bench trial on value the court adopted the lender's expert's retrospective value of $1,310,000 as of the March 27, 2018 transfer, credited it against the debt, and on June 14, 2024 entered judgment against the borrowers and guarantor, jointly and severally, for $1,735,579.45 plus default-rate interest (the lender later withdrew its fee request). The Eighth District affirmed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 1735579.45,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "1215-superior-v-berger-2025",
  "source": {
   "caseName": "1215 Superior, L.L.C. v. Jacob Berger",
   "court": "Court of Appeals of Ohio, Eighth Appellate District (Cuyahoga County)",
   "docket": "No. 113882, 2025-Ohio-645 (C.P. No. CV-23-977211)",
   "decided": "2025-02-27",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2025/2025-Ohio-645.pdf",
   "excerptNote": "documentText is verbatim from Part I (Factual History), the first sentence of Part II describing the complaint, the sentence that the guarantor appeared and answered, and two sentences from Part III stating the guarantor's lack-of-consideration defense. Removed: the opening summary, the sentences reporting the summary judgment, fee award, clerical correction and judgment components, and all appellate analysis and holdings. Note: judgment was entered on summary judgment, not after trial."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lender, 1215 Superior, LLC, the former owner of a commercial building at 1215 Superior Avenue in Cleveland that financed part of its sale with two purchase-money loans, suing the guarantor Jacob Berger in the Cuyahoga County Court of Common Pleas, Ohio, on his unconditional guaranty and three forbearance agreements. Berger contends the guaranty is unenforceable for lack of consideration. The guaranty makes Berger liable for the lender's enforcement costs and attorney fees. The facts below are from the record.",
   "documentText": "Lender was the former owner of a commercial property located at 1215 Superior Avenue in Cleveland, Ohio. On November 7, 2019, 1215 Superior entered into a contract with Hampton Realties, LLC to sell the property. Part of this transaction included Lender making two loans to two different entities, 1215 Superior Holdings LLC and Superior GP Holdings. These loans were reduced to writing in the form of a subordinated promissory note with a principal of $1,000,000 (“Loan A”) and a promissory note with a principal of $250,000 and interest (“Loan B”) (collectively, “the Loans”). Each of the Loans was set to mature in March 2021. The day after the Loans were executed, Berger executed a document titled “Unconditional Guaranty of Payment and Performance” (“the Guaranty”). In this document, Berger “unconditionally and absolutely guarantee[d] to Lender, the full and prompt payment of any and all of [both borrowers of the Loan’s] liabilities, obligations and debts to Lender in respect of the Loans . . . .” The Guaranty provided that if the Loans were not paid, the Loans “shall become the direct and primary indebtedness and obligation of” Berger “as if [he] was the maker or principal obligor under the Loan Documents.”\n\nThe Guaranty also provided that Berger was responsible for all costs and expenses, including attorney fees incurred by Lender in enforcing, modifying or amending, or prosecuting any actions or proceedings arising out of the Guaranty.\n\nIn March 2021, when the Loans were set to mature, neither of the borrowers nor Berger had paid Lender. In June 2021, Lender and Berger entered into a forbearance agreement where Lender agreed that it would not exercise its rights and remedies under the Guaranty until September 30, 2021. Pertinently, the forbearance agreement that Berger signed indicated that (1) the Loans are valid, binding, and enforceable obligations; (2) the outstanding balance on the Loans owed to Lender totaled $1,395,685.02; (3) Berger is obligated to pay all outstanding amounts pursuant to the terms of the Guaranty; and (4) Berger has “no defenses, counterclaims, rights of setoff, or rights of recoupment” with respect to the amount owed to Lender. Berger once again agreed to pay all legal fees, costs, and expenses associated with the forbearance agreement.\n\nBy September 30, 2021, Lender had not received payment. In November 2021, Lender and Berger entered into a first amended forbearance agreement. In the first amended agreement, Lender again agreed not to exercise its rights and remedies under the Guaranty until March 31, 2022. The agreement that Berger signed indicated that (1) he was in default of his obligations under the Loans, (2) the outstanding balance due to Lender was $1,487,043.87, (3) he would pay Lender the total principal and accrued and unpaid interest with respect to Loan B.\n\nIn February 2022, Berger tendered a lump sum payment of $250,579.93, which paid off Loan B’s principal and interest per the terms of the second amended forbearance agreement. Berger also made several more partial payments throughout 2022. However, the entirety of the debt was not paid by March 31, 2022, as agreed, and Berger remained in default of the Guaranty and first amended forbearance agreement. The parties entered into a second amended forbearance agreement, extending Berger’s time to pay until December 31, 2022. This agreement, that Berger signed, provided that (1) the original borrowers continued to be in default of its obligations under the Loans, and (2) that Berger was now in default of his obligations under the Guaranty, the forbearance agreement, and the first amended forbearance agreement. The agreement further provided that the outstanding balance of Loan A was $1,258,517.92 and the outstanding balance of Loan B was $147,869.84, and provided for lower interest rates that would be rendered null and void should Berger not pay them before December 31, 2022. By December 31, 2022, however, Berger still had not paid all amounts due with respect to Loan A. On March 28, 2023, Lender filed the underlying case, naming Berger as the sole defendant, alleging breach of the Guaranty and forbearance agreements.\n\nBerger appeared and answered.\n\nBerger argues that “to have a valid guaranty, there must be sufficient consideration provided to the purported guarantor – i.e., Mr. Berger.”\n\nBerger relies heavily on Wood for the proposition that since he purportedly has no ownership interest in the entities that borrowed Loan A and Loan B, the Guaranty was not supported by consideration."
  },
  "outcome": {
   "amount": 1510705.93,
   "amountIsTheRequestedAmount": false,
   "date": "2025-02-27",
   "description": "The trial court granted the lender summary judgment on the guaranty and forbearance agreements; as corrected on limited remand, the judgment awarded $1,091,479 in outstanding principal and $419,226.93 in interest ($1,510,705.93), plus $36,211.50 in attorney fees and $441.75 in litigation expenses. The Eighth District affirmed, rejecting the lack-of-consideration defense.",
   "attorneysFeesAtTrial": 36211.5,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 1510705.93,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "zenith-global-v-linden-village-2021",
  "source": {
   "caseName": "Zenith Global Solutions, Inc., d/b/a Zenith Capital v. Linden Village Assisted Living Community, LLC",
   "court": "Washington Court of Appeals, Division One (unpublished)",
   "docket": "No. 81490-7-I",
   "decided": "2021-07-06",
   "url": "https://storage.courtlistener.com/pdf/2021/07/06/zenith_global_solutions_inc._resp_v._linden_village_assisted_living.pdf",
   "excerptNote": "documentText is verbatim from Part I (facts and pleadings) through the owner's answer and counterclaims. Removed: the opening summary, footnote 1 and its marker, running page headers, the paragraph reporting the bench-trial conclusions, damages and fee award, and all appellate analysis. Role note: Zenith is the owner's paid development manager under a Development Services Agreement for an assisted living project, mapped to the Contractor / Design Professional side as the service provider on the project."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Zenith Global Solutions, Inc., the development manager for an assisted living facility project in Seattle, suing the project owner, Linden Village Assisted Living Community, LLC, in Washington superior court for breach of a Development Services Agreement after Linden withheld monthly fee payments and terminated the agreement; Linden counterclaims for breach of contract and asserts that Zenith materially breached first. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "In May 2013, Tribach Partners, LLC acquired a piece of real property at 13524 Linden Ave N., in Seattle, Washington. Christopher Chen, a governor of Tribach, intended for the development of the property to be used to create an opportunity for Chinese nationals to obtain legal permanent residency in the United States through the EB-5 program, which allows foreign nationals to obtain legal permanent residency by investing in American companies. See EB-5 Immigrant Investor Program, U.S. CITIZENSHIP & IMMIGR. SERVS., https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5- immigrant-investor-program [https://perma.cc/EEH6-VBNF].\n\nIn October 2014, Chen, David Bovée of Zenith, and Stuart Brown of Village Concepts, LLC signed a letter expressing their intent to put together a team to construct an assisted living facility on the property utilizing EB-5 funding. In 2015, Qiang “John” Tu, Bovée, and Chen formed Linden. Linden then acquired the property.\n\nZenith began providing Linden with project development reports (PDRs) in November 2015. Linden and Zenith entered into a Development Services Agreement (DSA), effective August 1, 2016, which detailed the relationship between Linden and Zenith for developing the project. Bovée played a major role in both organizations—he both served as general manager of Linden and was the sole owner and president of Zenith. This dispute arises from the DSA.\n\nThe DSA describes the services Zenith would provide as follows: 2. Scope of Services. During the term of this Agreement, Developer shall provide its respective expertise, and undertake the performance of the development services reasonably requested by Owner from time to time with respect to the Property and Project, including the following:\n\n(a) Oversight of the development of the Project at the Property and oversight and preparation of feasibility and market studies to determine the overall best use and senior housing mix for the Project; (b) Obtain all necessary entitlements for the Project and coordinate with all necessary governmental and similar officials and individuals; (c) Obtain or cause to be obtained any and all required permits and licenses (to operate the Project as an assisted living or memory care facility or otherwise) from the City of Seattle and the State of Washington (or other governmental bodies or agencies), generally based on the plans (the “Project Plans”) for the Project which have been or will be submitted to the City of Seattle and, if required, to the State of Washington (and coordinate such submittal if not already accomplished); (d) Provide Owner with bi-monthly reports as to the status of the development of the Project; and (e) Such other developmental services (i) as are customarily provided by developers of projects similar to the Project and at locations similar to the Property or (ii) as Owner and Developer shall agree.\n\nIn exchange, the agreement provided that Zenith was entitled to the following compensation: 5. Compensation. For services rendered pursuant to this Agreement, Owner shall pay the Developer a total development fee of five hundred thousand dollars ($500,000.00) (the “Development Fee”). The Development Fee shall be paid in the following installments:\n\n(a) Owner shall pay Developer the sum of fifteen- thousand dollars ($15,000.00) per month beginning the month in which the Effective Date occurs and ending the month in which the construction phase begins, subject to a maximum of twelve (12) such monthly payments. (b) Owner shall pay Developer the sum of seven- thousand five-hundred dollars ($7,500.00) per month beginning the first month following the month in which the construction phase of the Project begins and ending the month in which a certificate of occupancy is issued for the Project by the applicable governmental entity, subject to a maximum of sixteen (16) such monthly payments. (c) Upon the issuance of a master use permit, Owner shall pay Developer the sum of fifty-thousand dollars ($50,000.00). (d) Upon the issuance of a HUD commitment for a Section 232 loan, Owner shall pay Developer the sum of fifty- thousand dollars ($50,000.00). (e) Upon the commencement of the construction phase of the Project, Owner shall pay Developer the sum of fifty- thousand dollars ($50,000.00). (f) Upon the issuance of a certificate of occupancy, Owner shall pay Developer any then unpaid balance of the Development Fee.\n\nThe DSA provided that Linden could terminate the agreement under certain conditions: 8. Term; Termination.\n\n(a) The initial term of this Agreement shall commence on the Effective Date and end upon the issuance of a Certificate of Occupancy for the Project and payment of the Development Fees, subject to earlier termination as provided in this Agreement. (b) Notwithstanding the term of this Agreement, this Agreement may be terminated (without cost or penalty to Owner) at any time by Owner for “cause” (as defined below). This Agreement shall terminate automatically with no notice required, upon (i) the sale of the Property or Project, (ii) if required by any lender pursuant to loan documents entered into by Owner, or (iii) upon foreclosure or transfer by deed-in-lieu of foreclosure to the exiting lender or a successor lender. For purposes hereof, the phrase “cause” means the occurrence of any one or more of the following: (i) the gross negligence or willful, reckless or criminal misconduct of Developer or any of its directors, officers, employees, or agents in respect of the performance of Developer’s duties hereunder, in which event Owner may terminate this Agreement immediately upon notice to Developer; (ii) if Developer shall fail to comply with any provision of this Agreement, and Developer shall fail either to (1) cure such default within thirty (30) days after receipt of written notice from Owner specifying the nature of the default, or (2) commence to cure the default within thirty (30) days after receipt of written notice from Owner specifying the nature of the default if the default is of such a nature that it cannot reasonably be cured within thirty (30) days, and thereafter proceeds with due diligence to cure the default; (iii) Developer terminates the services of the persons listed on Exhibit A hereto without Owner’s approval; or (iv) any of the developing/permitting/financing, site work, or construction phases of the Project are not completed by the deadlines specified for each such phase on Exhibit B hereto and Owner notifies Developer of Owner’s termination of this Agreement as a result thereof within fifteen (15) days thereafter. (c) This Agreement shall be terminable by Owner if any of the following events occur prior to the issuance of a Certificate of Occupancy for the Project: (i) Developer notifies Owner that “hard costs” for the construction of the Project are expected to exceed nineteen million dollars ($19,000,000); (ii) Owner’s application for a HUD Section 232 loan for the Project is denied; or (iii) the Form I-526 immigrant petition filed with United States Citizenship and Immigration Services by any EB-5 investor with respect to the Project is denied, provided that such denial is not related to such investor’s qualification as an EB-5 investor, including source of funds verification.\n\nOn August 12, 2016, while Zenith was developing the project, Linden submitted its Master Use Permit (MUP) application to the City of Seattle. In December 2016, the City’s Design Review Board recommended approval with minor changes.\n\nZenith failed to provide PDRs for August and September of 2016, as required by the DSA. Zenith resumed providing PDRs in October 2016.\n\nOn November 16, 2016, a general contractor, Exxel Pacific, provided Zenith with a construction cost budget, estimating costs of $19,989,143 to build the project. Zenith’s general manager, Jason Higbee, testified that his impression was that Exxel was not interested in working on a HUD project. The estimate was not reported to Linden. In March 2017, another general contractor, Halvorson, provided a cost estimate of $28,313,027. This estimate was not provided to Linden. Bovée testified that, by this time, Zenith had already determined that it would use a different general contractor, Wright HD.\n\nIn order to secure a HUD loan, Zenith recommended using a certain vendor: CBRE. In February 2017, CBRE submitted a loan application. On March 1, 2017, Bovée (on behalf of Zenith) requested a payment of $35,000 for debt placement services associated with the HUD loan application. That same day, Bovée (on behalf of Linden) wrote a check payable to Zenith in the amount of $35,000. Initially, Bovée and Tu voted to approve the payment, with Chen voting against it. Tu later changed his vote to “reject.”\n\nIn mid-March, Linden instructed Zenith to return the $35,000 to Linden, asserting that no agreement had been made with regard to milestone payments for debt placement services. Zenith refused to return the funds until a new debt placement agreement was reached, and stated that it would suspend its debt placement efforts. About a week later, Bovée executed a contract entitled “Debt Placement Agreement” between Linden and Zenith, on behalf of both Linden and Zenith. At trial, Bovée claimed that he conducted negotiations for this agreement with himself, as manager for Linden and as president of Zenith.\n\nIn an attempt to recoup the $35,000, Linden did not make the monthly payment of $15,000 in June or July 2017. As this dispute continued, Zenith continued to provide Linden with PDRs. On July 14, 2017, Linden removed Bovée as general manger. On July 17, 2017, Zenith filed this lawsuit against Linden alleging breach of contract.\n\nOn July 27, 2017, the Seattle Department of Construction and Inspection issued a Notice of Decision, conditionally granting the MUP application. The notice indicated that the decision could be appealed until 5:00 p.m. on August 10, 2017.\n\nOn the afternoon of August 10, hours before the appeal period ended, Linden terminated the DSA with Zenith. Linden explained that it was terminating the agreement because of the dispute over the $35,000, Zenith’s suspension of debt placement efforts, and Zenith’s failure to report that hard costs were expected to exceed $19 million dollars.\n\nLinden brought counterclaims of breach of contract when it filed its answer to Zenith’s complaint. In both its original and amended answers, Linden pleaded material breach by Zenith as an affirmative defense."
  },
  "outcome": {
   "amount": 80000.0,
   "amountIsTheRequestedAmount": false,
   "date": "2021-07-06",
   "description": "After a bench trial the court concluded Linden breached the Development Services Agreement by withholding monthly payments and the $50,000 master-use-permit progress payment and awarded Zenith $80,000 in damages; it found Zenith also breached (notably by suspending debt placement) but that Linden proved no resulting damages, dismissed Linden's counterclaims, and awarded Zenith attorney fees and expenses. The Court of Appeals affirmed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 80000.0,
   "finalNote": "Affirmed (fee amounts not stated)."
  },
  "expectedRole": "Contractor / Design Professional",
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "brandon-v-wells-fargo-midland-2020",
  "source": {
   "caseName": "David Keith Brandon v. Wells Fargo Bank, N.A., as Trustee for the Registered Holders of LaSalle Commercial Mortgage Securities, Inc. 2007-MF5, and Midland Loan Services",
   "court": "Texas Thirteenth Court of Appeals (Corpus Christi-Edinburg), on appeal from the 156th District Court, San Patricio County",
   "docket": "No. 13-18-00393-CV",
   "decided": "2020-05-28",
   "url": "https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=&MediaID=6611f74e-0214-4698-895d-8c0393168f0e&DT=Opinion",
   "excerptNote": "documentText is verbatim from the Background (Parts A-D): the notes, servicing arrangement, default, the lenders' suit, receivership sale and the borrower's counterclaims, and the bench-trial testimony of both sides. Removed: the opening summary (which states the judgment), the quoted note and deed-of-trust clauses, footnote 3 and its marker, subsection headings, the payoff table reproduced from Plaintiff's Exhibit 3 and the sentence introducing it, one sentence of the lender's accounting testimony that states the unapplied-funds figure (it equals the actual-damages award), the trial court's judgment and findings (Part E), and all appellate analysis. Outcome note: amount is the trial damages award (actual plus exemplary against each defendant); finalAmount is the actual damages left after appeal."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the borrower, David Keith Brandon, who defaulted at maturity on two CMBS notes secured by the Sun Valley Apartments in Portland, Texas; after the lenders obtained a receiver and sold the property, Brandon counterclaims in the 156th District Court, San Patricio County, against Wells Fargo (trustee) and Midland Loan Services (servicer) for breach of contract, negligence, conversion and Theft Liability Act violations over the handling of the excess sale proceeds, seeking consequential and exemplary damages and attorney's fees. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "In December 2006, Brandon executed two promissory notes in favor of LaSalle Bank which were secured by a deed of trust on the Sun Valley Apartments (the collateral) located in Portland, Texas. The maturity date for the notes was January 1, 2012, at which point Brandon was required to pay the remaining principal balance. The first note, which the parties refer to as the A-Note, was in the amount of $2,640,000. The A-Note was later assigned to Wells Fargo. The second note, or B-Note, was in the amount of $165,000 and was later assigned to CBA-Mezzanine Capital Finance, LLC (CBA-Mezzanine).\n\nPursuant to a “Pooling and Servicing Agreement” (Servicing Agreement), the duties of collecting note payments, holding and disbursing escrow funds, and performing most of the routine administrative functions regarding the notes were delegated to a Master Servicer and a Special Servicer. The Master Servicer for the A-Note was Midland, and the Master Servicer for the B-Note was Wells Fargo. The Master Servicer services the Note until there is a default or default is imminent, at which time the servicing duties are transferred to the Special Servicer. Midland was the Special Servicer for both notes.\n\nMidland sent Brandon notices in the months prior to the loan’s maturity date, reminding him that he was required to pay the loan in full or he would be subject to interest or other charges as specified by the loan documents. The December 2, 2011 notice indicated an outstanding principal balance of $2,475,110.86. Brandon did not pay the notes’ balances by the maturity date, at which time Midland became the Special Servicer for both notes. Midland sent Brandon a notice of default for the A-Note on February 2, 2012, and it later communicated with Brandon concerning his default on the B-Note. Midland instructed Brandon to continue sending payments as he had done prior to default, by sending the A-Note payments to Midland and the B-Note payments to Wells Fargo.\n\nIn April 2012, Wells Fargo deposited Brandon’s $24,787.41 payment for the A- Note, but Brandon’s note was not credited. Wells Fargo maintained at trial that Brandon mistakenly sent the check directly to it, rather than to Midland, the servicer of the note, and that it did not discover the payment was for the A-Note until years after suit was filed. Brandon testified that he sent the payment to Midland.\n\nThe lenders filed the instant suit on April 30, 2012, alleging that Brandon defaulted on the notes by failing to pay all amounts due at maturity and by failing to maintain the collateral in good condition and repair. The lenders requested that the trial court appoint a receiver, contending that they had the right to do so pursuant to the loan documents.\n\nThe trial court signed an agreed order granting the lenders’ application for appointment of a receiver. The order authorized the receiver to take control of the collateral and to secure a buyer. In October 2012, the receiver filed a report of sale and agreed motion to approve the sale of the collateral for $3,200,000. The motion prayed that the trial court confirm the sale of the collateral and authorize the receiver to distribute the net proceeds from the sale to the lenders by and through the receiver. The trial court signed an agreed order granting the receiver’s motion, approving the sale, and providing that “any net proceeds from the sale of the [collateral] would be distributed to [the lenders].” In March 2013, Brandon filed a counterclaim against Wells Fargo alleging that the sale price of the collateral exceeded the “payoff balance owed to Wells Fargo” by $600,000. Brandon alleged that Wells Fargo’s retention of those funds amounted to a conversion of Brandon’s property. At this time, Brandon also filed a motion to terminate the receivership and require distribution of the sale proceeds. In June 2015, Brandon filed a third-party petition against Midland alleging that Midland was jointly and severally liable with Wells Fargo for refusing to distribute the excess sale proceeds. In his live pleading, which encompasses a petition and multiple supplemental petitions, Brandon alleged causes of action for breach of contract, negligence, conversion, and liability under the Theft Liability Act. Brandon further alleged that he was entitled to consequential damages because his intended purchase of another property fell through when he did not have sufficient cash to get a loan. As a result, Brandon contended he was unable to defer certain income taxes and he lost out on the income the property would have generated. Brandon also claimed that the lenders failed to return the “escrow balances for taxes and insurance.” The lenders later filed an amended pleading, alleging that they were entitled to an offset of $103,160.89 for payments recently made to Brandon. The lenders contended that this amount represented the net sale proceeds owed to Brandon, the amount of the April 2012 payment for the A-Note, and accrued interest.\n\nA two-day bench trial commenced on January 16, 2018. At the outset, the lenders stated they were not proceeding on any affirmative claims for relief because Brandon’s obligation on the notes was satisfied by application of the proceeds of the collateral. Brandon argued that the funds he received as excess sale proceeds were inadequate, and he intended to proceed on his claims.\n\nDavid Bornheimer, Midland’s vice president, testified based on his review of the loan file and accounting records. He maintained that Midland allowed Brandon seven months following the notes’ maturity dates to sell the collateral or refinance the notes. When Brandon was unable to do so, the parties agreed to the receiver’s sale of the collateral.\n\nBornheimer testified that there were a number of charges and deductions relating to the sale. An exhibit titled “Seller’s Statement” prepared by the title company indicated that the property sold for $3,200,000. After the deductions of charges and fees, which included property tax payments, $3,005,915.44 was paid to Midland. Bornheimer testified that any excess funds from the sale were not immediately available to Brandon because the receiver was entitled to look to those funds for any expenses he may have. According to Bornheimer, the lenders were required to wait for the receiver’s final accounting before they were able to calculate the amount due to Brandon. Bornheimer testified that the receiver continued to pay bills for the collateral through January 2013.\n\nIn March 2013, after receiving a final accounting from the receiver, Midland notified Brandon that he was entitled to $58,293.35 of the net sale proceeds.\n\nBornheimer provided explanations for each charge in Plaintiff’s Exhibit 3, stating that they were justified by the loan documents. In particular, the deed of trust for the collateral provided that in the event of Brandon’s default, the lenders would have the power to sell the property, and the lenders would “be entitled to collect all costs and expenses incurred in pursuing such remedies, including, but not limited to, attorney’s fees, costs of documentary evidence, abstracts and title reports.” In addition, the promissory notes authorized a five percent late charge and a three percent default rate of interest. Bornheimer also discussed Plaintiff’s Exhibit 31, a Midland document that provided a calculation for the payoff quote found in Plaintiff’s Exhibit 3. According to Bornheimer, this document indicated that Midland deducted the amounts held in Brandon’s escrow account from his debt. Bornheimer stated that on December 6, 2017, Midland paid Brandon $72,196.31, which represented the proceeds he was due plus accrued interest at the rate of 5%. Bornheimer testified that Midland paid Brandon $30,364.58 on October 27, 2017, which was intended to be a refund of Brandon’s April 2012 A-Note payment of $24,787.41 plus accrued interest at the rate of 5%. Bornheimer contended that Midland never received the payment because Brandon sent it directly to Wells Fargo. Because Brandon insisted that he sent the check to Midland, the search for the payment focused on Midland’s records. Bornheimer stated that Midland’s internal departments conducted at least three extensive searches for the payment, but they could neither match the check number nor check amount to any deposits. According to Bornheimer, Wells Fargo was able to locate the payment after Midland provided Wells Fargo the amount of the check and possible dates of receipt.\n\nBrandon’s counsel questioned Bornheimer about Midland’s internal accounting records, which were admitted into evidence. Those records indicated that Midland deposited $3,005,915.44 for the sale of the collateral and $56,561.34 from the escrow account. Midland’s accounting records provided that the payoff for the A-Note was $2,498,812.40, and the payoff for the B-Note was $186,411.74. Bornheimer agreed that these figures indicated approximately $377,000 in excess sale proceeds before the deduction of any penalties, fees, or costs.\n\nBornheimer agreed that the deed of trust for the notes required the lender to release the instrument upon payment of all sums secured by the instrument. A release of the deed of trust was filed on November 2, 2012. When questioned why Midland did not pay the excess funds to Brandon when the notes were satisfied, Bornheimer stated that Midland was waiting for the receiver’s final accounting. He explained: So the net sale proceeds were sent to Midland, pursuant to the receivership—to the order, to the agreed order, that Mr. Brandon . . . agreed to and told us to do—or told the receiver to do. And then the concern is we would wait for the receiver to close out his books so he knows what all the trailing expenses are. Because the receiver, if he was short of cash, would be looking for those net sale proceeds to pay any final bills if he didn’t have money. So it’s prudent and appropriate to wait until the receiver closes out his books before any excess money is distributed.\n\nThe trial court admitted a Midland document dated October 31, 2012, calculating a payoff amount for the notes of $2,826.320.28. When asked about the $121,000 discrepancy between this and the payoff amount of $2,947,622.09 shown in Plaintiff’s Exhibit 3, Bornheimer maintained that the October 31, 2012 document was a draft and did not represent the final calculation.\n\nKris Degraff-Tully, a former Midland employee, testified that she recommended that Midland pursue a receivership for the collateral because the loan had matured and there were health and safety issues relating to the condition of the property.\n\nPatricia Reed Constant, Brandon’s previous attorney in the case, testified that she requested a payoff statement for Brandon in May 2012. The lenders’ counsel informed her that it typically takes several days to a week “in order to get it done[.]” Constant continuously requested the payoff amounts for the notes and asked what Brandon could expect to receive following the sale of the collateral, but the lenders’ counsel never responded.\n\nConstant also communicated with the lenders’ counsel regarding the April 2012 payment. The trial court admitted a copy of the cleared check for the April 2012 payment, which was made payable to Midland. The check contained an account number and the reference “Mortgage-Sun Valley.” Constant testified that Brandon continued to make payments through August 2012, and the trial court admitted exhibits to that effect.\n\nConstant testified that Brandon intended to use the excess proceeds from the sale of the collateral to invest in a separate piece of property and that she communicated Brandon’s intentions to the lenders’ counsel. She provided wiring instructions to the lenders’ counsel on January 28, 2013. At that time, the lenders had not provided Constant a payoff statement. After getting no response from the lenders, Constant contacted Brandon’s trial counsel, who filed a counterclaim in March 2013.\n\nBrandon testified that he made the required monthly payments on both notes through the maturity date. He used rental income from the collateral to make the payments. Brandon anticipated that he would be able to refinance the notes prior to maturity, but he was unable to do so. Following default, he stated that Degraff-Tully instructed him to continue making payments, and he did so, believing that he would be able to keep the property. According to Brandon, he mailed the April 2012 A-Note payment to Midland, and he provided a copy of the cleared check to Degraff-Tully when she said the payment was not received. After a receiver was appointed to sell the property, Brandon intended to use the excess sale proceeds to purchase a separate property which would allow him to defer tax obligations on any realized profits. Brandon identified property in Inglewood, California with a $1,900,000 purchase price. He anticipated he would receive $400,000 from the sale of the collateral, which he would use to purchase the Inglewood property. Brandon and the seller executed a purchase agreement for the property in October 2012. Brandon testified that he was unable to obtain financing to purchase the property because he did not have sufficient cash.\n\nThe trial court admitted an internal Midland report dated October 10, 2012, which concerned the impending sale of the collateral. Through that report, Midland estimated that the sale proceeds would pay off the notes’ balance and the excess proceeds due to Brandon would be “approximately” $200,000. The report also indicated that Midland did not intend to charge Brandon default interest on the notes. The trial court also admitted an exhibit showing that Brandon had paid a total of $141,379.78 toward the notes following default.\n\nOn cross-examination, Brandon conceded that he was never guaranteed by anyone that the notes would be refinanced prior to maturity. He also acknowledged that the loan documents provided the lenders the right upon default to take control of the property through a court-appointed receiver. He further conceded that the loan for the Inglewood property was declined for the additional reason that Brandon did not have sufficient liquid assets.\n\nCornell Sandifer, the former owner of the Inglewood property, testified concerning the income-producing capabilities of the property. The trial court admitted an income and expense statement that indicated an annual profit of $67,000. Jonathan Meier Nikfarjam, a California real estate broker, testified that the current market value for the Inglewood property is $3,750,000.\n\nTerry Dean Reigert, a Midland employee, testified that he reviewed Brandon’s loan file in September 2013 and concluded Brandon was owed money at that time from the sale of the collateral. Reigert stated that it generally takes five to ten days to compute a “payoff request.”"
  },
  "outcome": {
   "amount": 735327.6,
   "amountIsTheRequestedAmount": false,
   "date": "2020-05-28",
   "description": "After a two-day bench trial the court awarded Brandon $245,109.20 in actual damages against Wells Fargo and Midland jointly and severally, plus $245,109.20 in exemplary damages against each of them ($735,327.60 total damages), and $125,000 in attorney's fees plus conditional appellate fees; it found no consequential damages. The Thirteenth Court of Appeals reversed the judgment against Midland entirely and the exemplary damages, and affirmed the rest, leaving $245,109.20 in actual damages against Wells Fargo plus the fee award.",
   "attorneysFeesAtTrial": 125000.0,
   "attorneysFeesOnAppeal": "affirmed as to Wells Fargo",
   "finalAmount": 245109.2,
   "finalNote": "Modified on appeal: exemplary damages and Midland liability reversed; actual damages affirmed."
  },
  "expectedRole": "Borrower / Guarantor",
  "category": "lending-foreclosure",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "preston-hollow-v-senior-care-living-vi-2024",
  "source": {
   "caseName": "Senior Care Living VI, LLC and Mark C. Bouldin v. Preston Hollow Capital, LLC, UMB Bank N.A., and TMI Trust Company",
   "court": "Texas First Court of Appeals (Houston), opinion on rehearing, on appeal from the 458th District Court, Fort Bend County",
   "docket": "No. 01-21-00602-CV (Trial Court Case No. 19-DCV-265897)",
   "decided": "2024-05-14",
   "url": "https://storage.courtlistener.com/pdf/2024/05/14/senior_care_living_vi_llc_v._preston_hollow_capital_llc_umb_bank_n.a..pdf",
   "excerptNote": "documentText is verbatim from the Background (Parts A-C): the bond financing, loan agreement and guaranty, the construction-payment dispute with Baxter, the default notices and acceleration, and the pleadings and summary-judgment arguments. Removed for length: the detailed Bond Indenture, Master Indenture and CDMA paragraphs, the side-letter details, the trustee-resignation correspondence and the later default notices. Removed as outcome: the opening paragraphs (trial result and disposition), the summary-judgment and Rule 166(g) rulings, the bench-trial judgment and its components, and all appellate analysis. Footnotes 3-11 and markers removed. Note: the principal balance sought ($44,675,000) appears as the pleaded demand; the judgment amount does not."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent Preston Hollow Capital, LLC, the majority bondholder representative, with the successor bond trustees UMB Bank and TMI Trust Company, in the 458th District Court, Fort Bend County, Texas, seeking the accelerated balance of bond-financed loan notes from Senior Care Living VI, LLC, owner of an assisted living facility in Sugar Land, and from its principal Mark Bouldin under his guaranty; Senior Care sues for declaratory relief, tortious interference and breach, contending no default occurred and the successor trustees were not validly appointed. The case is set for a bench trial. The facts below are from the record.",
   "documentText": "Mark Bouldin is the president and owner of Senior Care Ownership 3, Inc., the entity that manages Senior Care. Bouldin is a real estate developer who has developed numerous projects over the last twenty years, including several assisted living facilities for seniors throughout the southern United States. Around 2016, an engineer who works with Bouldin identified a property in Sugar Land that he believed would be ideal for a new assisted living facility called Inspired Living at Missouri City. Throughout the initial stages of development, Bouldin was also having discussions with Piper Jaffray, a bond underwriter, about the possibility of issuing bonds to raise funds to acquire the land and develop the facility. Eventually, an agreement was reached concerning the financing of the project through the issuance and sale of bonds, and the relevant parties executed a series of documents that set out the various rights and obligations. On January 1, 2017, Woodloch Health Facilities Development Corporation (“Woodloch”) issued four tiers of over $44 million in bonds: (1) $30,320,000 in tax- exempt Series 2017A-1 bonds; (2) $2,580,000 in taxable Series 2017A-2 bonds; (3) $2,025,000 in taxable Series 2017A-3 bonds; and (4) $9,750,000 in subordinate Series 2017B bonds. Woodloch entered into a Trust Indenture and Security Agreement (“the Bond Indenture”) with Branch Banking and Trust Company (“BB&T”), which agreed to serve as the Bond Trustee. Woodloch and BB&T are the only signatories to the Bond Indenture. Preston Hollow, which purchased over $21 million in Series 2017A-1 bonds, was named the “Series 2017A Majority Representative,” a position that had certain rights under the Bond Indenture, but it did not sign this document.\n\nOn the same date that Woodloch and BB&T signed the Bond Indenture, Woodloch and Senior Care entered into a Loan Agreement. In this agreement, Woodloch agreed to use the proceeds from the sale of the bonds to fund a loan to Senior Care by depositing the proceeds with BB&T, as provided in the Bond Indenture. Senior Care agreed to use the loan proceeds to “pay a portion of the costs of acquiring, constructing, developing, furnishing[,] and equipping” the assisted living facility. It also agreed to “make payments sufficient to pay the principal of, premium, if any, and interest on the Series 2017 Bonds when due.” Senior Care agreed to execute a series of promissory notes to secure payment of the loan, deliver the Notes to BB&T, and make all payments required by the Notes.\n\nFinally, Bouldin executed a Guaranty Agreement (“the Guaranty”). Bouldin “guarantee[d] to the Master Trustee (for the benefit of the Holders) (collectively, the “Guaranteed Parties”), the full, complete and prompt payment of the principal and redemption price, if any, of and interest on the Series 2017 Notes when due, whether at stated maturity . . . acceleration or otherwise” upon the occurrence of certain specified events. These events included: (1) the filing of a mechanic’s or materialmen’s lien against the property; (2) Senior Care’s failure to pay any portion of its Gross Revenues to the Master Trustee as required by the Master Indenture; and (3) an action by Senior Care or Bouldin to contest, delay, interfere with, or fail to cooperate with “the Master Trustee’s exercise of remedies provided under the Bond Documents or any guaranty after the occurrence of an Event of Default.” Bouldin also agreed to be liable to “the Guaranteed Parties in all instances for any loss, damage, cost, expense, liability or claim incurred by Guaranteed Parties” arising out of certain other events. These events included Senior Care’s failure to pay “other charges required to be paid by [Senior Care] under the Bond Documents” and “charges for labor or materials or other charges that can create liens on the Property.” The Guaranty provided that “any Guaranteed Party,” following an Event of Default, could proceed directly against Bouldin prior to making a demand upon Senior Care. The Guaranty is the only document in connection with this transaction that Bouldin signed in his individual capacity, and not in his capacity as the president of the entity that manages Senior Care.\n\nSenior Care contracted with an Iowa-based company, Baxter Construction Company (“Baxter”), to build the assisted living facility. Bouldin had worked with Baxter prior to the project that is the subject of this appeal. The “Guaranteed Maximum Price” to which Baxter was entitled for construction costs was $22,240,000. Baxter also served as the general contractor for another construction project that occurred at roughly the same time as this project: the construction of an Inspired Living assisted living facility in Lewisville, Texas, near Dallas. The owner of that property and facility was Senior Care Living VII, LLC. Construction on the Sugar Land facility proceeded throughout 2017 without any major issues. With construction substantially complete, Senior Care obtained a Certificate of Occupancy around December 2017. However, in 2018, a dispute arose with Baxter over whether Baxter was entitled to more than $1 million in additional funds based on change orders. Senior Care did not believe that these requests were valid. Nevertheless, to settle the dispute, Senior Care, Bouldin, and Baxter entered into a “Side Letter Agreement Regarding Payments to Baxter Construction Company” (“the Side Letter Agreement”) in August 2018.\n\nPreston Hollow was aware that Senior Care and Baxter had an ongoing dispute concerning payment, but it did not see the Side Letter Agreement until several months after that agreement had been signed. In December 2018, Baxter submitted its final payment request of $1,762,308.80 to Senior Care. It is undisputed that Baxter had not obtained all lien waivers from its subcontractors. Despite this, Senior Care submitted Baxter’s payment request to Preston Hollow. Preston Hollow requested that Senior Care provide it with additional information, including the Side Letter Agreement, and it also communicated directly with Baxter concerning the payment dispute. Ultimately, Preston Hollow did not approve the disbursement request to Baxter, and Baxter filed a lien against the property in March 2019. At the same time that Senior Care sought disbursement of $1.7 million to pay Baxter, it also sought disbursement of approximately $574,000 to pay its property taxes that were due on January 31, 2019. A Preston Hollow employee replied that “there is not a line item in the project budget for [real estate taxes] and funding for this line item via project fund appears to run contrary to the Master Trust Indenture.” This employee stated, “[I]t appears that real estate taxes are to be funded by [Senior Care].” Preston Hollow did not agree to disburse funds to pay the property taxes, and those taxes became delinquent. On March 25, 2019, at the direction of Preston Hollow, BB&T sent a “Notice of Covenant Breaches and Events of Default and Demand Letter” to Bouldin and Senior Care. This letter stated that Baxter alleged that it was owed over $2.2 million for work performed on the project; Baxter had recorded a lien affidavit and claim in the amount of $1,762,308.80 with the Fort Bend County Clerk; and Senior Care owed approximately $614,000 in assessed and unpaid taxes to three Fort Bend County taxing authorities. The letter informed Senior Care that its failure to pay Baxter’s claim within 30 days of the notice would constitute an “Event of Default” under the bond documents. BB&T demanded that Senior Care pay $852,777.11— representing the difference between the amount of Baxter’s claim and the amount of funds currently on deposit in the Project Fund—within 30 days. BB&T also made a demand upon Bouldin that he fully pay Baxter’s claim pursuant to the Completion Guaranty that he signed. BB&T also stated that Senior Care’s failure to extinguish Baxter’s lien within 30 days and pay the unpaid taxes within 30 days would also constitute “Events of Default.” On April 8, 2019, BB&T sent Senior Care and Bouldin a “Supplemental Notice of Breaches and Events of Default and Notice of Intent to Accelerate.” In this letter, BB&T referenced its March 25 letter and stated that if Senior Care failed to timely cure the conditions set out in the previous letter, BB&T or Preston Hollow “shall declare an Event of Default under each of the related Bond Documents and accelerate (subject to further election and notice to you) and declare immediately due and payable all amounts due and owing pursuant to” the various bond documents. On May 31, 2019, BB&T sent a “Notice of Events of Default under the Bond Documents and Acceleration of Maturity of Notes and Bonds.” BB&T stated that Senior Care had failed to cure the conditions set out in the two previous letters. Therefore, BB&T, at Preston Hollow’s direction, declared that an “Event of Default” had occurred under the Bond Indenture, the Master Indenture, and the Loan Agreement. BB&T declared that the Notes and the bonds were accelerated and that the entire principal of the Notes and the unpaid principal and interest on the bonds were immediately due and payable in full.\n\nIn August 2019, UMB Bank posted the property for a foreclosure sale in early September. Senior Care then filed the underlying proceeding against UMB Bank and TMI. Initially, neither Bouldin nor Preston Hollow were parties to this proceeding. Senior Care sought injunctive relief to halt the pending foreclosure sale and to prohibit UMB Bank and TMI from taking any action under the bond documents. Senior Care also sought a declaratory judgment that (1) the appointment of UMB Bank and TMI as Bond Trustees “is void and of no effect”; (2) Senior Care was entitled to select a successor Bond Trustee under the provisions of the Master Indenture; and (3) Senior Care was not in default under the Loan Agreement or Master Indenture. UMB Bank, in its capacities as co-successor Master Trustee and co-successor Bond Trustee, asserted a counterclaim for breach of contract, alleging that Senior Care had failed to comply with its obligations under the “Bond Documents.” As damages, UMB Bank sought recovery of the outstanding amount of principal on the bonds—$44,675,000—as well as interest, fees, and costs. UMB Bank also sought a declaration that it and TMI had been appropriately appointed co-successor Bond Trustees under the Bond Indenture and co-successor Master Trustees under the Master Indenture. Additionally, UMB Bank sought appointment of a receiver for Senior Care. Preston Hollow filed a petition in intervention and adopted UMB Bank’s counterclaims. Preston Hollow also filed a separate suit against Bouldin on the Guaranty, and it requested that the trial court consolidate the two cases. The trial court consolidated the cases, and Bouldin became a party to the underlying proceeding. After Preston Hollow became a party and asserted claims, UMB Bank and TMI “conditionally asserted” the same claims against Senior Care and Bouldin that Preston Hollow asserted. These claims included a claim against Senior Care for breach of contract and a claim against Bouldin under the Guaranty. After the trial court granted Preston Hollow’s motion to consolidate, Senior Care filed an amended petition. In this amended petition, Senior Care alleged that Preston Hollow had tortiously interfered with the Side Letter Agreement and the bond documents by, among other things, wrongfully declaring default and wrongfully refusing to authorize requested disbursements. Senior Care alleged that UMB Bank and TMI had tortiously interfered with the bond documents by acting as Master Trustees without authority to do so. It alleged that if Preston Hollow was a party to the bond documents, Preston Hollow breached the documents by improperly declaring a default and accelerating the debt. Senior Care also alleged that Preston Hollow, UMB Bank, and TMI had converted its property by wrongfully exercising control over money held by BB&T. In connection with the conversion claim, Senior Care also asserted a claim for money had and received. Senior Care continued to seek declaratory relief.\n\nBouldin moved for summary judgment against Preston Hollow, UMB Bank, and TMI on their claims that he was liable to them under the Guaranty. Specifically, Bouldin argued that the only parties to the Guaranty were Bouldin himself and BB&T as Master Trustee; Preston Hollow was not a party to the Guaranty, and therefore it could not sue him to enforce the Guaranty. He further argued that, to the extent Preston Hollow relied on provisions in the Master Indenture that allowed it, as the Noteholder Representative, to pursue certain remedies, Preston Hollow could not pursue such remedies against Bouldin, who was not a party to the Master Indenture. Bouldin also argued that even if Preston Hollow could enforce the Guaranty, none of the events that would trigger Bouldin’s liability under the Guaranty had occurred."
  },
  "outcome": {
   "amount": 52597040.06,
   "amountIsTheRequestedAmount": false,
   "date": "2024-05-14",
   "description": "After a week-long bench trial the court rendered judgment for Preston Hollow against Senior Care and Bouldin, jointly and severally, for $52,597,040.06 ($44,675,000 principal plus $7,922,040.06 pre-judgment interest), $250,000 in attorney's fees and $520,000 conditional appellate fees, and reappointed a receiver. On rehearing the First Court of Appeals rendered judgment that Preston Hollow may not enforce the guaranty against Bouldin, reversed the $52.6 million breach-of-contract award against Senior Care and remanded that claim for a new trial, remanded the trustees' guaranty claims for trial, and vacated the fee awards.",
   "attorneysFeesAtTrial": 250000.0,
   "attorneysFeesOnAppeal": "vacated",
   "finalAmount": null,
   "finalNote": "Reversed and remanded for new trial on the contract claim; guaranty judgment reversed and rendered. Pending."
  },
  "expectedRole": "Lender",
  "category": "lending-foreclosure",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "architectural-stainless-v-tm-partridge-creek-mall-2021",
  "source": {
   "caseName": "Architectural Stainless, Inc., d/b/a ASI Equipment v. Karet Projects, LLC, Thomas Lefevre, and TM Partridge Creek Mall, LP",
   "court": "Michigan Court of Appeals (unpublished), on appeal from the Macomb County Circuit Court",
   "docket": "No. 353660 (LC No. 2018-002821-CB)",
   "decided": "2021-05-13",
   "url": "https://www.courts.michigan.gov/4a4ed7/siteassets/case-documents/uploads/opinions/final/coa/20210513_c353660_35_353660.opn.pdf",
   "excerptNote": "documentText is verbatim from Part I (Background) through the start of the bench trial and the mall owner’s directed-verdict motion; it includes the pretrial April 2019 summary-disposition ruling for the owner and its later reversal on reconsideration. Removed: the opening summary (which states the no-cause judgment and affirmance), footnotes 1-4 and their markers, running page numbers, the trial court's May 20, 2020 opinion and judgment, and all appellate analysis. Note: the supplier recovered nothing against the mall owner; the outcome is zero."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Architectural Stainless, Inc., which fabricated and installed kitchen equipment for a tenant's restaurant at The Mall at Partridge Creek and was not paid, in its action in the Macomb County Circuit Court, Michigan, to foreclose its construction lien against the mall owner, TM Partridge Creek Mall, LP, after the tenant was evicted. The lien-foreclosure claim is set for a bench trial. The facts below are from the record.",
   "documentText": "Plaintiff designs, fabricates, and installs food service equipment for restaurant and institutional use. Defendant operates The Mall at Partridge Creek, which includes retail stores and restaurants.\n\nIn July 2016 defendant executed a lease of space at the mall to Karet Projects, LLC (Karet), for the purpose of operating a Muer Kitchens restaurant. Karet’s chef approached plaintiff to provide design and installation services for the restaurant’s kitchen. Between August 28 and December 6, 2017, plaintiff fabricated and installed stainless steel equipment, such as a dishwashing area, a chef island, a cooking line, a salad prep station, cocktail serving stations, and a sushi station, much of which was attached to the walls with anchors or pinned to the floor. Plaintiff billed Karet $274,424.20 for the project, but Karet paid only $61,035.00 of that amount. On December 11, 2017, plaintiff filed a construction lien in the amount of $213,389.20, naming defendant as the owner of the property.\n\nThe restaurant opened for business, but failed to pay any rent. This ill-fated project spawned several legal actions, including summary proceedings by defendant in the 41B District Court seeking possession of the premises, an appeal to the Macomb Circuit Court, and a breach- of-contract action by defendant against Karet and two individuals resulting in a consent judgment for defendant. Karet also filed an action in the Macomb Circuit Court challenging the validity of plaintiff’s lien and asserting that the equipment fabricated and installed by plaintiff was not covered by the CLA. The court in that case initially declined to declare the lien invalid, but ultimately dismissed Karet’s action.\n\nPlaintiff filed the complaint in this case on July 26, 2018. In Count I, plaintiff sought foreclosure of its lien, alternatively requesting a sale of defendant’s property to satisfy the lien or appointment of a receiver over the property to collect rents and profits to satisfy the lien. Five days later, plaintiff filed a motion for summary disposition under MCR 2.116(C)(9) and (10), requesting that the court foreclose its construction lien and enter judgment for plaintiff in the amount of $213,389.20. Defendant filed a response to the motion, asserting in part that under MCL 570.1107(1), plaintiff’s lien attached only to Karet’s leasehold interest, and not to defendant’s interest in the property. Two days later, defendant answered the complaint, denying plaintiff’s entitlement to foreclosure against its property and asserting, as an affirmative defense, that plaintiff’s lien attached only to Karet’s leasehold interest, and not to defendant’s property. On August 31, 2018, defendant’s counsel e-mailed plaintiff’s counsel, announcing defendant’s intention to evict Karet from the premises and to allow Karet to remove its equipment from the restaurant and inviting plaintiff to attend a potential walk-through of the premises to “identify any equipment subject to its lien.” On September 6, 2018, Karet was evicted from the property. In a letter to plaintiff’s counsel, dated October 4, 2018, defendant’s counsel noted that plaintiff had not removed any of the items described in its lien from the premises, repeated defendant’s intention to remove those items, and invited plaintiff to advise him if plaintiff wished to recover any of those items from the premises. On October 23, 2018, Karet began removing equipment and fixtures fabricated and installed by plaintiff from the premises; this removal process continued until December 18, 2018.\n\nOn November 21, 2018, the trial court denied plaintiff’s motion for summary disposition. Plaintiff thereafter filed an amended complaint alleging that it had made improvements to the property pursuant to an agreement with Karet and with the knowledge and consent of defendant; that Karet owed $213,389.20 for the improvements made by plaintiff; that plaintiff had filed a claim of lien in that amount and had served a copy of the lien on defendant; and that plaintiff had performed all the steps prescribed by the CLA to perfect its claim of lien. Plaintiff again requested a sale of defendant’s property or the appointment of a receiver to satisfy its lien claim. Answering the complaint, defendant again denied plaintiff’s entitlement to relief sought from defendant through foreclosure.\n\nOn February 15, 2019, defendant filed a motion for summary disposition of plaintiff’s foreclosure claim, pursuant to MCR 2.116(C)(10), asserting that because Karet did not own the property and there was no agency relationship between Karet and defendant, plaintiff’s lien attached only to the alleged improvements. Defendant also asserted that the equipment installed by plaintiff comprised trade fixtures that remained the personal property of Karet, the lessee. Finally, defendant noted that all of the equipment installed by plaintiff had been removed from the property by Karet and argued that enforcing the lien against defendant would place it in the position of guarantor of Karet’s obligations to plaintiff.\n\nResponding to the motion, plaintiff asserted that the lease obligated Karet to make the improvements, that the equipment installed by plaintiff was affixed to the premises and that, pursuant to § 6.02 of the lease between Karet and defendant, all improvements became property of defendant upon attachment to the premises. Thus, plaintiff reasoned, defendant became the owner of the improvements after evicting Karet and the lien was enforceable against defendant’s property. Plaintiff disputed defendant’s characterization of the equipment as trade fixtures, noting that the CLA contains no provisions regarding trade fixtures. Plaintiff cited MCL 570.1107(2) in support of its assertion that defendant had acquired all legal or equitable interest in the equipment, requested that the court deny defendant’s motion for summary disposition, and requested summary disposition pursuant to MCR 2.116(I)(2).\n\nIn a reply brief, defendant asserted that Karet was not its agent in law or in fact, citing Rowen & Blair Electric Co v Flushing Operating Corp, 399 Mich 593; 250 NW2d 481 (1977), in support of the proposition that where a tenant’s improvements are removed from the property, a construction lien attaches only to the removed improvements. Defendant also asserted that the lien did not attach to the real property because defendant did not require the improvements and, therefore, there was no agency relationship.\n\nIn an opinion and order issued on April 24, 2019, the trial court granted defendant’s motion for summary disposition. Citing MCL 570.1107(1) and (3), the court explained that a contractor who contracts with a lessee generally has a construction lien only on the interest of the lessee and that where a party with no legal title to the property contracts for an improvement to the property, a lien attaches only to the improvement. However, citing J & I Serv Station, Inc v Wash Wagon of Mich, Inc, 120 Mich App 533, 537; 327 NW2d 518 (1982), the court recognized an exception to the general rule: where a lease requires the lessee to make the improvements, the lessee becomes an agent of the lessor, who is then bound by the improvements. Applying this rule to the facts of this case, the court held that plaintiff had cited no provision of the lease that required Karet to install the equipment, and thus presented no evidence of an agency relationship between Karet and defendant. The court further held that Karet’s abandonment of the property did not expand the scope of the lien, and that the CLA does not address whether an improvement is permanent or removable. Finding no evidence that defendant contracted for the equipment, the court granted summary disposition for defendant.\n\nPlaintiff filed a motion for reconsideration pursuant to MCR 2.119(F). Citing Norcross Co v Turner-Fisher Assoc, 165 Mich App 170; 418 NW2d 418 (1987), plaintiff asserted that the court had erred by holding that an agency relationship could only be established if the lease required the tenant to make improvements to the property. Citing the lease between Karet and defendant, plaintiff asserted that because the equipment it fabricated and installed was required by the lease and the lease required Karet to obtain defendant’s approval of each step in the construction, there was ample evidence of an agency relationship between Karet and defendant. The trial court granted plaintiff’s motion for reconsideration, holding that in light of the lease provisions cited in plaintiff’s motion, a finder of fact could conclude that an agency relationship existed.\n\nThereafter, a bench trial was conducted on plaintiff’s foreclosure claim against defendant. In his opening statement, defense counsel asserted, for the first time, that judgment must be entered for defendant because plaintiff failed to provide a sworn statement as required by the CLA. The next day, plaintiff’s counsel noted that the issue of the sworn statement had not been raised earlier and requested that the record reflect that a sworn statement was being presented to defendant’s counsel. Rather than address the issue, court continued hearing testimony. At the conclusion of plaintiff’s case, defendant moved for a directed verdict, premised on plaintiff’s failure to provide a sworn statement before filing the complaint in this case. The court took the motion under advisement."
  },
  "outcome": {
   "amount": 0.0,
   "amountIsTheRequestedAmount": false,
   "date": "2021-05-13",
   "description": "After a bench trial the court held the construction lien attached only to the tenant's terminated leasehold interest, not the mall owner's real property (the lease permitted but did not require the improvements), found no cause of action and entered judgment for the mall owner against the $213,389.20 lien claim. The Court of Appeals affirmed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "finalAmount": 0.0,
   "finalNote": "No-cause judgment for the owner affirmed."
  },
  "expectedRole": "Contractor / Design Professional",
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "state-v-skyway-holdings-2021",
  "source": {
   "caseName": "The State of Texas v. Skyway Holdings LLC and Anderson Auto Salvage a/k/a Anderson Towing Inc.",
   "court": "Texas Third Court of Appeals (Austin), on appeal from County Court at Law No. 3, Bell County",
   "docket": "03-19-00143-CV (trial court No. 76172)",
   "decided": "2021-03-05",
   "url": "https://storage.courtlistener.com/pdf/2021/03/05/state_v._skyway_holdings_llc_and_anderson_auto_salvage_aka_anderson_1.pdf",
   "excerptNote": "Verbatim from the Background and from the opinion's descriptions of Korman's appraisal testimony, the State's challenges, and the State's offer of proof. Removed: the opening paragraph (jury award and holding), the jury's deliberation question and the court's answer, the sentence stating the jury's verdict and judgment, the sentence noting Korman's total 'the same amount that the jury awarded', footnotes 1 and 3 and the Hutson footnote marker, the standard of review, and every sentence stating the court's conclusions. The owners' closing request range (whose low end equals the verdict) is retained as a genuine party demand, so amountIsTheRequestedAmount is true. Page numbers removed; whitespace normalized."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the landowners, Skyway Holdings LLC and Anderson Auto Salvage, whose IH-35 salvage yard in Troy, Texas lost a 0.22-acre strip to the State's highway-widening condemnation. The owners objected to the special commissioners' award and the case is set for a jury trial on compensation for the part taken and damage to the remainder.",
   "documentText": "Since 1988, Harold and Sandra Anderson, through the Anderson Companies, have owned and operated a salvage yard on 17.538 acres (the Property) located on IH-35 in Troy, Texas (the City). Harold owns and operates Anderson Auto Salvage, and the Andersons jointly own Skyway Holdings. In 2006, the City annexed the Property, zoning it for light industrial use but allowing the Property to continue operating as a salvage yard through a special use permit.\n\nIn 2013, the State sought to widen IH-35 and filed a petition for condemnation, seeking to acquire 0.22 acres of the Property (the Parcel), leaving 17.318 acres of the Property (the Remainder Property). The special commissioners awarded $74,429 in damages, and the Anderson Companies challenged the award and demanded a jury trial. By agreement, the parties set April 11, 2013, as the valuation date—i.e., the effective date of the taking. Before trial, the Anderson Companies designated Josh Korman as an appraisal expert, Charles Dunn as a real estate expert, and Harold as a witness testifying under the Property Owner Rule, see Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 157 (Tex. 2012) (excepting property owners from requirement that witnesses must otherwise establish qualifications to express opinion on land values). The State moved to exclude their opinions on various grounds, which the trial court denied after a Texas Rule of Evidence 702 gatekeeper hearing. The Anderson Companies also filed a motion in limine to prevent reference to business income after the taking, which the trial court granted.\n\nThe jury trial occurred over three days in October 2018 and primarily consisted of the testimony of the parties’ experts. Before the cross examination of Harold, the State’s counsel again requested a ruling on whether he could question Harold as to increased business revenues following the taking. The trial court denied the request but allowed counsel to ask whether the business is still ongoing.\n\nAt the close of trial, the Anderson Companies requested between $508,548 and $1 million in compensation, and the State asked for between $74,875 and $96,206 to compensate the Andersons.\n\nApplying the cost approach, Korman opined that the value of the Remainder Property before the taking was $1,675,112; that the value after the taking was $1,223,735; and that subtracting the latter number from the former produces $451,377 in damages.\n\nLooking specifically at the “Depreciation” row, Korman explained that the “depreciation before [the taking] was 28 percent” based on the age of the improvements but after the taking “[t]hat has been increased [to] 75 percent because we believe there’s functional obsolescence.”\n\nHe described the taking’s effect upon the improvements: Due to the location of the taking the northern driveway will be relocated approximately 110 feet south from its location before the taking. The location of the taking and the change in access (including the relocation of the northernmost driveway which was the primary entrance for retail and truck traffic) create material functionality, internal site circulation, safety, security, and operation problems. Traffic can no longer circulate from the northern driveway, pass the primary building and drop-off area, and exit the southern driveway. The primary building is now isolated from the circulation pattern. Ultimately the taking causes site, circulation, and safety issues after the taking as demonstrated by the 2 operational options analyzed by Hutson Land Planners & Development Consultants, LLC (Hutson).\n\nKorman considered the two cure options proposed by Hutson but concluded that these options are not financially feasible.\n\nThe State raises two challenges to the testimony. First, the State complains that “Korman employed no test to measure the site’s utility, either before or after, against market standards” to calculate the 65% depreciation value. Second, the State challenges the reliability of Korman’s application of a 65% depreciation value to “all improvements on the remainder, including the gravel and fencing on the back seventeen acres of the salvage yard storage area, far removed from the driveways and vehicular traffic” and argues that “there is no evidence the gravel and fencing on the remaining seventeen acres suffered any loss of functionality.”\n\nKorman testified that he visited the Property multiple times, that he has specific experience appraising salvage yards throughout Texas, that neither he nor Harold were aware of any salvage yard sales in this market area, and that salvage yards are “not a common property type, not just in this marketplace but anywhere that transacts.”\n\nThe State then made an offer of proof, asking Harold, “Since the State’s acquisition, have your revenues on that site actually increased?” Harold responded affirmatively. The Anderson Companies’ counsel then asked Harold why the revenues have increased. He responded, “we really pushed the internet sales for one thing,” “we’re delivering a lot more parts,” and “the economy is good right now.”"
  },
  "outcome": {
   "amount": 508548,
   "amountIsTheRequestedAmount": true,
   "date": "2021-03-05",
   "description": "After a three-day jury trial in October 2018 the jury awarded $508,548 (exactly the owners' appraiser Korman's cost-approach figure and the low end of the owners' requested range), against the State's requested $74,875-$96,206 and the special commissioners' $74,429; judgment was rendered on the verdict. The Austin Court of Appeals affirmed on March 5, 2021, holding Korman's functional-obsolescence testimony admissible and the exclusion of post-taking revenue evidence not reversible. No attorney's fees in a Texas condemnation award.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 508548,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "hrt-enterprises-v-detroit-2025",
  "source": {
   "caseName": "HRT Enterprises v. City of Detroit, Michigan",
   "court": "United States Court of Appeals for the Sixth Circuit, on appeal from the U.S. District Court for the Eastern District of Michigan",
   "docket": "Nos. 23-1847/1855 (E.D. Mich. No. 2:12-cv-13710)",
   "decided": "2025-12-22",
   "url": "https://storage.courtlistener.com/pdf/2025/12/22/hrt_enterprises_v._city_of_detroit_mich._1.pdf",
   "excerptNote": "Verbatim from Part I.A-C (facts, prior litigation, the district court's list of post-2005 developments and its liability ruling) and the Part VI.B paragraph describing the parties' valuation testimony at the first trial. Removed: the opening summary paragraph (both jury awards, the remittitur and the disposition), the sentences reporting the first jury's date finding and $4.25 million award, the remittitur figure, the second trial and second verdict, the district court's and panel's evaluation of each valuation witness, all holdings, and the dissent. Running page headers removed; whitespace normalized."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent HRT Enterprises, owner of an 11.8-acre industrial property with a vacant four-acre building next to Detroit's Coleman A. Young International Airport, in its federal de facto (inverse condemnation) takings suit under 42 U.S.C. 1983 against the City of Detroit. The district court has granted HRT summary judgment on liability, and the case is set for a jury trial on the date of the taking and just compensation.",
   "documentText": "In 1984, HRT bought an 11.8-acre parcel of land on the east side of Detroit. The property is next to Detroit’s Coleman A. Young International Airport, and the airport’s runway “visibility zone” covers approximately 20 percent of the property. A “visibility zone” is a regulated area that ensures a surrounding land use does not pose risks to aircraft operations; here, it limited HRT’s ability to build on its property. The Federal Aviation Authority prohibits tall structures within a runway’s visibility zone absent a waiver. 14 C.F.R. § 77. The City must acquire HRT’s property to comply with FAA regulations without the waiver. The City acquired other properties near the airport in a residential area called the “Mini-Take” area but not HRT’s. HRT’s property included an industrial building. The four-acre building sat empty after the last tenant vacated in late 2008. Vandals run amok on the property, and much of the area rots.\n\nHRT argues that because of the City, HRT is no longer able to use, lease, or sell the property. In 2002, HRT and its tenants collectively filed suit against the City in state court and asserted an inverse condemnation claim. In 2005, a jury rejected the claim. In 2007, the Michigan Court of Appeals affirmed that jury verdict, and the Michigan Supreme Court denied leave to appeal. HRT Enters. v. City of Detroit, 745 N.W.2d 786 (Mich. 2008) (mem.). Then, on October 20, 2008, HRT sued the City in federal court. The district court found that, although HRT pleaded new facts sufficient to circumvent res judicata based on the prior state court suit, it had not sought just compensation through state procedures based on the new facts. Therefore, HRT was not yet entitled to a federal forum because it had not exhausted its state-law remedies in state court. See Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194–97 (1985) (requiring litigants to first exhaust state-law remedies before bringing takings claims in federal court). Thus, the district court dismissed HRT’s federal action without prejudice. On July 6, 2009, HRT accordingly filed a second suit in state court, claiming inverse condemnation of its property. The state trial court dismissed HRT’s claims on res judicata grounds, finding the claims barred by the 2002 state court action. HRT Enters. v. City of Detroit, 2012 WL 3055221, at *2 (Mich. Ct. App. July 26, 2012) (per curiam). In 2012, the Michigan Court of Appeals affirmed. Id. at 3. HRT did not seek leave to appeal to the Michigan Supreme Court. All told, HRT lost its 2002 state court suit after a jury rejected its inverse condemnation claim. Its 2008 suit in federal court was dismissed without prejudice under Williamson County. And it lost its 2009 state court suit on res judicata grounds.\n\nIn August 2012, HRT filed this suit, alleging a de facto takings claim under 42 U.S.C. § 1983 against the City. The City filed a hybrid motion to dismiss and motion for summary judgment arguing that HRT had not exhausted its state-law remedies under Williamson County, and that the case was barred by res judicata and collateral estoppel. The district court found that several factual developments since 2005 distinguished this action from the prior litigation in state court: 1. The last remaining tenant on the property went out of business in late 2008 and the property is now vacant; 2. The property has been looted by vandals who used adjacent City owned land to gain access to the property. Further, the City is not maintaining the land it owns in the area, and it is being used as a dumping ground; 3. HRT has been unable to lease or sell the property. The City, however, says that it technically leases the property because it is paying rent to HRT; 4. In December of 2006, Delbert Brown (Brown), manager of the Airport, confirmed the City’s plan to construct a replacement runway, which requires meeting FAA airport facility standards; 5. In March of 2008, former City Mayor Kwame Kilpatrick stated that the City would complete the acquisition of land near the Airport along French Road; 6. In October of 2008, Brown, in a letter to the City Council’s Public Health and Safety Standing Committee, stated that the Airport “will continue the land acquisition program to facilitate safety areas, clear zones and ultimately the replacement of the existing runway”; 7. In March of 2010, the City’s Purchasing Division informed the public that it intended to acquire all of the property necessary for building a replacement runway; 8. In October of 2008, Brown recommended to City Council against the reopening of McNichols Road, which was approved to be closed for five years in 1987; 9. The City has continued to purchase both residential and commercial properties within, and outside of, the Mini-Take Area since 2005; 10. In February of 2007, the City entered into a grant agreement for another airport project and accepted state and federal funds for land acquisition; 11. In January of 2008, the City submitted to the FAA a proposal for funding to completely close French Road, the road on which HRT’s property is located, between Lynch and McNichols; 12. In 2008, the City requested $85 million in funding from the FAA to expand the airport; 13. In 2009, the City constructed a left turn lane off of French Road, which leads to HRT’s vacant property; and 14. In July of 2011, HRT hired Gilbert’s Trucking to construct an earthen berm on the property to prevent trespassing. The City arrested and prosecuted employees of Gilbert’s Trucking for trespassing on City owned property. Thus, the City has held itself out to the public as owner of HRT’s land.\n\nHRT then moved for partial summary judgment on the issue of liability. The district court found the following: (1) the record “supports the City’s contention that there are no current plans to fund a new runway at the airport, and that the current Capital Improvement Plan is limited to maintaining and upgrading the existing runways and physical plant and to reimbursing the City for the Mini-Take acquisitions”; (2) the record “establishes that the City’s acquisitions in the Mini-Take Area is intended to bring the airport in compliance of FAA safety standards—in particular, the standard building restriction line”; (3) that “line extends approximately one-third into the property, and limits buildings within it to 35 feet high or less, depending on the distance from the airport runway”; (4) “there is no dispute that the runway visibility line extends into the southeast corner of the property, and that the existing building requires an FAA waiver”; (5) and “it was ‘probably not’ possible to get a permit to build a 40-foot high building on the property within this building restriction line.” Accordingly, the district court held that a taking had occurred and granted HRT’s motion, but it did so without deciding when the taking occurred.\n\nTrial began and HRT contended that the City committed a taking on January 1, 2009— the date its last tenant went out of business. The City argued that the date of the taking was August 13, 2015—the date the district court granted partial summary judgment in favor of HRT on the issue of liability.\n\nDuring the first trial, the parties presented conflicting testimony about the value of HRT’s property. HRT’s owner, Karl Thomas, testified that the property was worth $5 million. Andrew Reed, a real estate appraiser, testified on behalf of HRT and valued the property at $3,008,000 as of January 1, 2009. HRT also offered a document prepared by Michael Borta’s consulting company on behalf of the airport, which labeled HRT’s property value with a “placeholder” figure of $6 million to acquire. But Borta disavowed that figure at trial: “There is no specific basis for those [placeholder] numbers.” Finally, Peggy Young, the City’s expert, appraised the property at $3 million in 2002, $3,190,000 in 2005, and $1.5 million in 2010."
  },
  "outcome": {
   "amount": 1976820,
   "amountIsTheRequestedAmount": false,
   "date": "2025-12-22",
   "description": "The first jury fixed the taking date at January 1, 2009 and awarded $4.25 million; the district court ordered a remittitur to $2,008,000, the City rejected it, and a second jury awarded HRT $1,976,820 in just compensation. The Sixth Circuit affirmed on December 22, 2025 (ripeness, res judicata, liability, bifurcation and the remittitur all upheld; Thapar, J., dissenting on res judicata). Amount used is the operative second verdict.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 1976820,
   "finalNote": "Affirmed; the operative judgment is the second jury's $1,976,820 (first verdict of $4.25 million was remitted and retried)."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "piedmont-gas-v-blueroad-fontanel-2026",
  "source": {
   "caseName": "Piedmont Natural Gas Company, Inc. v. BlueRoad Fontanel, LLC",
   "court": "Court of Appeals of Tennessee at Nashville, on appeal from the Circuit Court for Davidson County",
   "docket": "No. M2024-01860-COA-R3-CV (trial court No. 19C1900)",
   "decided": "2026-04-01",
   "url": "https://storage.courtlistener.com/pdf/2026/04/01/piedmont_natural_gas_company_inc._v._blueroad_fontanel_llc.pdf",
   "excerptNote": "Verbatim from the Factual and Procedural Background: property and easement description, motion in limine, and a selection of the trial testimony of the owner (Farrell), land planner (Haas), Piedmont's asset-protection manager (Foster), and both appraisers (Gibson, Turner). Removed: the syllabus (disposition), parcel-map captions, footnotes 1-9 (including a footnote marker attached to Gibson's before-value figure, dropped from that sentence), long quoted testimony blocks and the Fox/Garner/Wiggins testimony (length), the paragraph stating the jury's before/after findings, incidental-damages figure and the judgment, the costs award, and all issues and analysis."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent BlueRoad Fontanel, LLC, owner of the Fontanel property in Nashville (a six-parcel hospitality and event venue with a mansion, inn, event hall, restaurant, retail building and distillery, zoned under a resort specific plan), in Piedmont Natural Gas's condemnation of a subsurface pipeline easement across it. Piedmont's authority to take is not contested; the case is set for a jury trial on just compensation, including incidental damages to the remainder.",
   "documentText": "This is a condemnation case concerning a large piece of property consisting of six parcels along Whites Creek in Nashville. A total of eleven structures were located on the property, including a 27,000-square-foot mansion formerly owned by country music star Barbara Mandrell, an inn, an event hall, a restaurant, a retail building, and a distillery. The property had most recently been used as a hospitality and event venue. BlueRoad Fontanel, LLC (“BlueRoad”) purchased the property in February 2019 for $14,500,000, with the intention of continuing and expanding the hospitality and event uses of the property. In August 2019, Piedmont Natural Gas Company (“Piedmont”) filed a petition for condemnation seeking an easement to install a subsurface natural gas pipeline on the property. BlueRoad did not contest Piedmont’s authority to take the easement but did contest the amount of just compensation proposed by Piedmont, $48,700, which was deposited with the circuit court clerk. The trial court entered an order confirming the taking in October 2019.\n\nParcels 1, 2, 5, and 6 are bounded to the east by Whites Creek Pike. Whites Creek, the creek itself, runs along the western border of parcels 1, 2, and a small part of 5, and along the eastern border of parcels 3 and 4. The mansion is located on parcel 3.\n\nThe easement generally cuts across the tip of parcel 1, runs along the creek, and then cuts across portions of parcels 3 and 4.\n\nIn June 2024, Piedmont filed a motion to exclude the expert testimony of Patrick Gibson, BlueRoad’s expert, pursuant Tenn. R. Evid. 104(a), 702, 703, and 403, arguing that the testimony was “irrelevant, unreliable, and . . . unfairly prejudicial” because his appraisal of the property concerned only the value of the property before the taking. After a hearing, the trial court entered an order on August 23, 2024, denying Piedmont’s motion to exclude Mr. Gibson’s testimony. The court concluded that Piedmont’s objections went to the weight, not the admissibility, of Mr. Gibson’s testimony and found no authority requiring an expert witness to provide both before and after values.\n\nTim Farrell, owner of BlueRoad, testified that he had over 25 years of experience in real estate investment and development. He explained his interest in the Fontanel property and the research he conducted in the years prior to deciding to purchase the property. Mr. Farrell met with John Haas, the landscape architect and land planner who had worked with the prior owners, and “studied the entitlements[2] from the zoning ordinance to understand how we could use the property.” Mr. Farrell testified about the preliminary specific plan (“SP”)3 in effect at the time he was considering purchasing the property. He stated that, “In the entitlement document, the specific plan, [the property] was called a rural resort,” which would allow it to have lodging, restaurants, bars, gardens, recreation areas, and events. In Mr. Farrell’s opinion, the events “were the primary driver of the business model” because “that’s where the property could make its money.”\n\nMr. Farrell pointed out a road or long driveway that came off of Whites Creek Pike and cut through the middle of the property. He stated that this road, which crossed over the gas pipeline, provided “the access point for the bulk of the property.” On the other side of the pipeline were the amphitheater/stage, event fields, hiking trails, zip lines, and the mansion. According to Mr. Farrell, 100 to 150 people might drive over the pipeline in a day; during a large event, this number would be significantly higher.\n\nMr. Farrell entered into a contract to buy the property in April 2018 and closed on the property in February 2019. He considered the purchase price of $14,500,000 to be “a great price,” partly because it was an “off-market opportunity,” so he was not competing against a number of other buyers. In Mr. Farrell’s opinion, BlueRoad had the expertise and the money to “bring this property to the next level, to actually bring all the entitlements to fruition that had not yet been done.” Further, Mr. Farrell testified, BlueRoad gave the seller “the opportunity to invest in our projects going forward as part of the negotiation of the purchase price so they could make more money on the back end, if we agreed to a lower price upfront.” Mr. Farrell testified that, after contracting to buy the property and before Piedmont condemned the property in October 2019, BlueRoad spent an additional $8 million (above the purchase price) on the property. This amount included taxes, insurance, interest, consultants, technology, architects, and engineers. Mr. Farrell then gave his opinion concerning the value of the property before the taking by Piedmont in October 2019: I believed at the time of the take, it was worth approximately $26 million dollars. And for a number of reasons. One, I think I explained that when we went under contract, we priced it in the middle, in early 2018, April of 2018, at $14.5 million dollars, which we believe was a very, very good buy; significantly below market for the reasons that I think I outlined. . . . We have a year-and-a-half go by, and everyone knows how Nashville – the real estate in Nashville, the tourism market, the residential market, everything in Nashville just went like this in that period. . . . We also believe that a lot of the money we spent brought it closer to being shovel ready, so to speak, or being closer to the point where you could actually build the development. So, we were closer [to] actually building the development, bringing it to fruition. So, the money we spent was essentially value added on top of the fact that it was already a very good buy, plus the fact that the Nashville real estate market continued to increase significantly over that time period.\n\nAsked about the effect of Piedmont’s easement for its pipeline, Mr. Farrell stated that the easement crossed the “heart of the property,” as people had to cross over the easement to access most of the property, including the field where the big events took place. He explained that, “Part of the value of this – the entitlements on this property was that you could hold temporary events in the floodplain.” The SP zoning allowed the owner to place tents and food trucks on the floodplain for concerts and other events; the owner could also use part of that space for temporary parking. He testified that, “we couldn’t without [Piedmont’s] permission, each time we wanted to cross it [the easement] get back to all of this land.” In his opinion, the easement “took a large chunk of this property” by cutting off access. Mr. Farrell also explained that the stage needed to face a certain direction to avoid sending the sound toward nearby neighborhoods. With the placement of the easement, he stated, “we had little room left for people to congregate; we had no room left for food trucks or, you know, all types of things; so, logistically that also made events very, very difficult.”\n\nOn October 26, 2021, Mr. Farrell received an email from Elia Martin, a Duke Energy employee who lived in Florida, in response to the encroachment requests. In her email, Ms. Martin stated that, “The natural gas business unit of Duke Energy does not issue blanket encroachment agreements.” She explained that construction plans and drawings would need to be submitted for review and that Duke Energy would need to be informed of the “pipeline depth at each crossing location area.” Ms. Martin further stated that “festival canopies will not be approved within the PNG easement.” Mr. Farrell stated that he was shocked to receive this email. Ms. Martin had not been involved in the prior two years of discussions about encroachments. Without blanket encroachments, he did not believe BlueRoad could operate its business.\n\nMr. Farrell was asked his opinion on the value of the property after the Piedmont gas line was installed. His response: “[T]he market told us it was $11.5 million dollars.” BlueRoad sold the property at auction in 2022 in six separate parcels for a total of $11,500,000. Mr. Farrell explained that, after receiving the information that Piedmont would not grant a permanent encroachment for use of the road, “we, unfortunately, were forced by our lender to sell the property, because we couldn’t use it as – as it was entitled and for the reasons we bought it for.” Mr. Farrell opined that “it was a very difficult sale prospect to sell a property that the – the use was unknown.” The property was for sale with a commercial broker for six months, and Mr. Farrell continued to attempt to work out an agreement with Piedmont. When the property did not sell, BlueRoad’s lender decided to sell the property at auction, which occurred in October of 2022. Five different buyers bought the six parcels.\n\nDuring the trial, Piedmont took the position that BlueRoad always had the right to use the existing road/driveway without permission from Piedmont.\n\nJohn Haas, a land use planner and landscape architect with The EDGE Group, Inc., testified that he had been involved with the property since 2007, working with the previous owners. He explained that he had contracted with the previous owners to help them realize their plan of “making the existing Barbara Mandrell mansion into a special events facility, as well as creating a stage for outdoor music concerts,” a restaurant, a zipline location, and other uses. Beginning in 2009, an SP governed the uses permitted on the property, and this document was amended several times. Pursuant to these entitlements, 75 percent of the approximately 135 acres was required to be open space and could not be built on. The SP permitted 150 hotel rooms, approximately 1,000 temporary parking spaces, daily tours of the Fontanel mansion, special events at the mansion, and concerts and other performances at the amphitheater eight months of the year, with up to 4,500 people.\n\nMr. Haas gave detailed testimony concerning how the lack of essential permanent encroachments meant that “we lost the ability to use that easement area completely.”\n\nJohn Foster was a senior asset protection program manager with Duke Energy/ Piedmont Natural Gas; he lived in North Carolina. He testified that, under Piedmont’s land use guidelines, a landowner could still use an existing driveway to cross over an easement without seeking permission from Piedmont. When presented with the encroachment worksheet submitted by BlueRoad to Piedmont, Mr. Foster opined that BlueRoad made a “blanket” request for multiple encroachments and that Piedmont would not review such a request. He stated that Piedmont/Duke needed “to know information about each crossing: where it’s going to take place, what it’s going to be, and, you know, what the nature is it going to be constructed with [sic].” Presented with Ms. Martin’s email, Mr. Foster explained that Piedmont/Duke would not, as the email stated, approve festival canopies.\n\nBlueRoad and Piedmont both presented expert testimony regarding the value of the property. Patrick Gibson testified for BlueRoad. Mr. Gibson, an executive director for Colliers International Valuation & Advisory Services, LLC, specialized in commercial real estate appraisal. Mr. Gibson prepared an appraisal in which he reached the conclusion that the property’s value before the taking was $25,500,000. BlueRoad did not request an aftertaking appraisal from Mr. Gibson. Mr. Gibson explained how he had conducted his appraisal, including his conclusion that the highest and best use of the property was for hospitality and entertainment venues.\n\nMr. Gibson was questioned about the appraisal of Jim Turner, Piedmont’s expert (discussed more fully below), who gave a before-taking valuation of $11,700,000. In Mr. Gibson’s view, the most fundamental difference between the two appraisals was the selection of comparable properties. Both appraisers agreed that the highest and best use of the property was for hospitality and entertainment. Mr. Gibson explained that his appraisal included “comparable sales that we felt better fit the highest and best use profile, given the SP in place on the subject property,” whereas Mr. Turner’s appraisal included “residential and agricultural sales in the immediate area.” Unlike Mr. Gibson’s appraisal, Mr. Turner’s report did not focus on properties with hospitality and performance-related uses, and Mr. Gibson opined that this was the biggest factor contributing to the difference in value reached by the two experts.\n\nMr. Turner, a real estate appraiser at BBG, testified for Piedmont. He opined that the property’s highest and best use was for an event venue, lodging, and hospitality, which he described as consistent with Mr. Gibson’s determination. BlueRoad questioned Mr. Turner regarding his before-taking valuation of $11,792,800 (as of October 2019) in light of the fact that BlueRoad had entered into a contract to purchase the property in April 2018 for $14,500,000. Mr. Turner opined that BlueRoad had a motivation to develop the six parcels for a specific planned use, which he considered “a motivation that the wider market may not have.” He thought this “could have been one of the reasons why the purchase price was higher than my indication of the market value.” As to the land used for the easement itself, the right-of-way, Mr. Turner opined that the direct damages were $98,700. As to the impact of the easement on surrounding property, Mr. Turner testified that he found incidental damages to a small half-acre portion of the property north of the easement line (on Knight Road). Otherwise, he found no incidental damages. When asked about BlueRoad’s loss of access to much of the property because of Piedmont’s failure to grant a permanent encroachment, Mr. Turner stated that he believed BlueRoad maintained access after the pipeline was built and, therefore, did not sustain any damages for loss of access.\n\nBlueRoad asked Mr. Turner whether, if BlueRoad “was not able to get the authority to go over the right of way to get to the east side of the property, if they couldn’t get that authority, that would be a very significant impact for incidental damages, wouldn’t it?” Mr. Turner responded: “If they lost access to the east side of the property permanently, it would be a major impact to the property.” When questioned by Piedmont, Mr. Turner explained his method of conducting the appraisal and his criticisms of Mr. Gibson’s appraisal. He disagreed with the development potential Mr. Gibson assigned to the excess land and with the comparable sales used by Mr. Gibson. He also disagreed with Mr. Gibson’s division of the property into the primary site and excess land. Mr. Turner stated that he considered the entire property as a whole and calculated the value of the underlying land and the improved sales value (for the buildings)."
  },
  "outcome": {
   "amount": 13896800,
   "amountIsTheRequestedAmount": false,
   "date": "2026-04-01",
   "description": "The Davidson County jury (August 2024) found a before-taking value of $25,500,000 and an after-taking value of $11,603,200, i.e. incidental damages of $13,896,800; judgment was entered for $13,798,100 after crediting Piedmont's $98,700 deposit, plus $14,203 discretionary costs. The Tennessee Court of Appeals affirmed on April 1, 2026, upholding admission of the owner's before-only appraisal and the jury's blending of the two experts' values. Amount used is the total compensation found (the deposit is part of it).",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 13896800,
   "finalNote": "Affirmed; judgment of $13,798,100 is the $13,896,800 verdict net of the $98,700 already deposited."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "odot-v-trade-winds-motor-hotel-2020",
  "source": {
   "caseName": "State of Oklahoma ex rel. Department of Transportation v. Trade Winds Motor Hotel East, Inc., et al.",
   "court": "Court of Civil Appeals of the State of Oklahoma, Division IV, on appeal from the District Court of Tulsa County",
   "docket": "No. 117,756; 2021 OK CIV APP 6, 484 P.3d 301",
   "decided": "2020-07-23",
   "url": "https://storage.courtlistener.com/html/2020/07/23/state_ex_rel._dept._of_transportation_v._trade_winds_motor_hotel_east_5.html",
   "excerptNote": "Verbatim from the Background, paras. 2-17 (paragraph numbers retained as they appear in the source). Removed: para. 1 (disposition), para. 18 (jury verdict, judgment and refund judgment), para. 19 (post-trial rulings), and all analysis; inline footnote-reference numerals stripped from nine words; footnote texts not included. Also available on OSCN as 2021 OK CIV APP 6."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent Trade Winds Motor Hotel East, Inc., owner of the (now closed) Trade Winds Motor Hotel East in Tulsa, in ODOT's 2008 condemnation of about a quarter-acre plus utility and construction easements for the I-44 expansion. Both sides excepted to the commissioners' reports and the case is set for a jury trial on the value of the part taken and damages to the remainder; the trial court has ruled that water-damage evidence from the contractors' water-line relocation is excluded.",
   "documentText": "2 This action concerns condemnation proceedings involving the now-defunct Tulsa Trade Winds Motor Hotel East and condemnation-related litigation that has spanned more than a decade. The essential, relevant facts gleaned from the trial court's journal entry and the parties' briefs appear largely undisputed.\n\n3 In August 2008, ODOT filed proceedings to condemn approximately a quarter-acre of property adjacent to the Hotel for an access road, perpetual utility easement, and temporary construction easement in conjunction with ODOT's I-44 expansion between Yale and Harvard Avenues in Tulsa. The court-appointed Commissioners assessed compensation due for the property to be taken and damages to the remainder at $847,000. ODOT paid that amount into court.\n\n4 Both ODOT and TWE filed exceptions. The court sustained the exceptions, set aside the award, and re-appointed Commissioners, who returned an \"Alias Report\" awarding $760,000. Each party demanded a jury trial, and ODOT did not withdraw its initial deposit of $847,000. ODOT's contractors--Third-party Defendants WNC, Inc. (formerly W.N. Couch, Inc.), W.N. Couch Contractors, a division of Sherwood Construction Co., Inc., and Sherwood Construction Co., Inc. (collectively, ODOT Contractors)--began work on the project, and ultimately completed it before the matter finally went to trial in February 2018. The litigation was prolonged by a series of physical calamities and legal conundrums that occurred in the interim. 5 In May 2010, while ODOT Contractors worked to relocate City of Tulsa water lines that were on the utility easement taken by ODOT, water leaks and flooding suddenly began to occur within, around, and under the Hotel, causing considerable damage. For reasons that remain disputed, TWE ended up closing the Hotel in August 2010.\n\n6 In May 2012, TWE filed a district court action against ODOT Contractors (without naming ODOT as a defendant), seeking damages for trespass and negligence in the Contractors' performance of the water line work. In mid-2013, TWE substituted its property insurer, United National Insurance Company (UNIC), as plaintiff and real party in interest in the tort case based on UNIC's status as TWE's alleged subrogee entitled to recoup its payments for insured losses resulting from the ODOT Contractors' alleged negligence. TWE withdrew from the tort case, and in early 2013 UNIC removed the case to federal district court. 7 In November 2013, however, ODOT and TWE moved to add ODOT Contractors and UNIC as necessary parties to the condemnation proceeding. They requested that (1) UNIC be required to assert any claims it might have, as TWE's subrogee, against ODOT and/or the Contractors, and (2) the ODOT Contractors be required to \"appear and defend against claims . . . for tortious or negligent injury to the real property which is the subject matter of this action occurring during construction of [ODOT's] highway improvements . . . .\" ODOT also requested the court to re-appoint the Commissioners to again appraise the amount and extent of damages inflicted to the property due to the construction operations, and to return a supplemental report \"awarding and apportioning the amount of such damages, if any, separate and apart from the damages awarded for the original taking.\" In December 2013, the court granted the joinder motion.\n\n8 UNIC thereafter obtained a voluntary dismissal of the federal court action, and both UNIC and ODOT Contractors were joined as Defendants/Third-Party Defendants in the condemnation case. In September 2014, the following actions occurred: (1) ODOT filed a claim against ODOT Contractors for indemnity, reimbursement, and contribution for amounts ODOT was required to pay as \"consequential damages\" to TWE's remainder property (whether paid to TWE or UNIC) as a result of ODOT Contractors' \"construction operations.\" (2) UNIC filed a claim against the ODOT Contractors for negligence, and also sued TWE for a declaratory judgment that UNIC had a valid subrogation interest in any funds recovered by TWE due to loss resulting from ODOT Contractors' negligence. (3) TWE filed a claim against UNIC for breach of contract and breach of the duty of good faith and fair dealing in UNIC's handling of TWE's claim under its insurance policy, claiming TWE had sustained losses covered by insurance of more than $2,663,159, of which UNIC had paid only $396,093. (4) Although not until April 2017, with the court's permission TWE asserted counterclaims against ODOT alleging alternative theories of recovery sounding in breach of a general duty of care to TWE, breach of contract (TWE as a third-party beneficiary), inverse condemnation, negligence, trespass, and nuisance. TWE sought judgment against ODOT for \"just compensation and/or damages\" in excess of $75,000. ODOT did not file a response to the counterclaims until July 2018, after trial in the condemnation case had concluded.\n\n9 In July 2015, after being re-appointed pursuant to the court's December 2013 order, the Commissioners filed a \"Supplement to Alias Report\" assessing damages \"separate and apart from the damages awarded\" in their prior Alias Report at $3,890,000. ODOT did not pay this amount into court, but filed its \"exceptions,\" as did the ODOT Contractors. The trial court ultimately sustained the exceptions and set aside the Supplement to Alias Report.\n\n11 In July 2016, after again re-appointing Commissioners (in March 2016) and accepting proposed \"Instructions to Commissioners\" from ODOT, TWE and the ODOT Contractors, the court entered its \"Second Alias Instruction[s] to the Commissioners.\" Those instructions--which are identical to instructions proposed by ODOT and substantially similar to those submitted by the ODOT Contractors--told the Commissioners to re-inspect and determine the value of the damage to TWE's \"remaining property\" that was \"incident to the taking\" by ODOT as of 2008, and not as the property \"is currently situated.\" The instructions stated that damage was \"'incident to the taking' when it is not the result of negligence, but rather may be the natural and ordinary, but unforeseen, result of the project which gave rise to the taking in the first place.\" Specifically, the instructions informed the Commissioners that the \"claimed water damage\" to the remainder property \"is not 'incident to the taking' because the damage resulted from the alleged negligence of third parties and not from something inherent in the project.\" (Emphasis in original). 12 In November 2016, the Commissioners returned their \"Second Alias Report\" assessing compensation due to TWE, exclusive of damages due to the claimed negligence of third parties, to again be $3,890,000. ODOT again filed exceptions and demanded a jury trial.\n\n14 Prior to the February 2018 condemnation trial, TWE filed a motion seeking that the trial court \"find and order\" as follows (emphasis added): [T]hat the Condemnation Trial of this matter is to be had on the issues of the value of the part of the property taken and damages to the remainder inclusive of the damages to the remainder which resulted to [TWE's] property by reason of the relocation of water lines, but exclusive of the negligence claims involving contractors and the insurance related claims of UNIC. 15 All other parties opposed this motion. ODOT and ODOT Contractors asserted, inter alia, that the trial court had already determined in its Instructions to Commissioners that the water damage alleged to have resulted from the Contractors' negligence was not \"incident to the taking,\" and thus water damage was an improper item for consideration as part of the condemnation case. ODOT also asserted that water damages evidence should be excluded because TWE had already been compensated by UNIC for its insured losses due to such damage, and had assigned its right to pursue a negligence claim against the Contractors to UNIC. ODOT further argued TWE could not now assert a tort claim against ODOT for any uninsured loss caused by the Contractors' alleged negligence, because TWE had not timely filed a tort claim against ODOT. UNIC objected on grounds that TWE planned to argue that a jury's determination of the amount of water damages would be binding on UNIC in TWE's separate contract and bad faith claims against the insurer. ODOT also filed a motion in limine seeking an order prohibiting TWE from introducing evidence or testimony regarding claims of water-related damages to TWE's \"remainder property.\" 16 The trial court denied TWE's February 2018 motion and entered a February 12 minute order prohibiting TWE from \"arguing or admitting evidence of water damage in the condemnation trial.\" The pre-trial order for the case states that TWE's counterclaim is \"[n]ot applicable to [the] condemnation portion of this proceeding,\" and that the trial court had \"previously determined that damage claims attributable to water inflicted damage to the said hotel facilities . . . are not incident to the taking by Plaintiff.\" TWE made a voluminous \"offer of proof\" related to the water damages issues in the case. The offer contains transcripts of deposition testimony by an engineer, an appraiser, and the Hotel's owner/manager, as well as business records, photographs, and ODOT contracts/reports concerning the effect that the water leaks and flooding had on the operation and value of the \"remainder property,\" i.e., the Hotel. The deposition testimony of TWE's expert appraiser, included in the offer, reflects his opinion that injury to the remainder property due to a decrease in market value, exclusive of water damage, amounted to damages of $1,003,000, but if the water damage and its secondary effects (e.g., mold and loss of electrical power for a long period of time) were taken into account, the total decrease in value amounted to approximately $1,666,400.\n\n17 Trial occurred over three days in February 2018. ODOT argued and adduced appraisal evidence that just compensation to TWE was no more than approximately $126,250, none of which is attributed to injury to the remainder property. Even though TWE was precluded from introducing evidence of water-related damage to the property allegedly caused by ODOT Contractors' water line relocation work, it adduced evidence that it was entitled to $1,003,000, of which approximately $829,500 was due to damage to the remainder property."
  },
  "outcome": {
   "amount": 340000,
   "amountIsTheRequestedAmount": false,
   "date": "2020-07-23",
   "description": "At the February 2018 trial the Tulsa County jury returned a verdict of $340,000 for TWE (ODOT's evidence: about $126,250; TWE's: $1,003,000), and the court entered judgment for ODOT for $420,000 of withdrawn deposit in excess of the verdict. The Court of Civil Appeals vacated the judgment and remanded on July 23, 2020 (mandate March 2021), holding the exclusion of the water-damage evidence was reversible error.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Vacated and remanded for a new trial; no final figure."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "lcra-st-louis-v-osher-2020",
  "source": {
   "caseName": "Land Clearance for Redevelopment Authority of the City of St. Louis v. James Townsend Osher",
   "court": "Missouri Court of Appeals, Eastern District, Division Two, on appeal from the Circuit Court of the City of St. Louis",
   "docket": "No. ED107081",
   "decided": "2020-04-21",
   "url": "https://storage.courtlistener.com/pdf/2020/04/21/land_clearance_for_redevelopment_authority_of_the_city_of_st._louis_v..pdf",
   "excerptNote": "Verbatim from the Factual and Procedural Background: Pre-Trial (condemnation filing, commissioners' award, exceptions) and Trial (each side's evidence, including both appraisers). Removed: the Introduction (judgment amount and costs), the judge-assignment/recusal motions, footnotes 1-4 and one footnote marker, the 'Jury Verdict and Homestead Allowance' section and everything after it. LCRA's appraiser's figure, which the jury adopted, is retained as a party's stated position, so amountIsTheRequestedAmount is true. The building was zoned industrial; the owner's post-verdict homestead (primary-residence) claim was denied and is not part of the input."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent James Townsend Osher, owner of the Buster Brown Building, a historic industrial-zoned building at 1516-1530 North Jefferson Avenue in St. Louis, taken by the Land Clearance for Redevelopment Authority for the National Geospatial-Intelligence Agency campus. Both sides filed exceptions to the commissioners' award and the case is set for a jury trial on the property's fair market value at the date of taking.",
   "documentText": "In December 2015, LCRA brought a condemnation action to take Appellant’s Property, known as the “Buster Brown Building,” located at 1516-1530 North Jefferson Avenue in the City of St. Louis, and over 500 other properties, to construct a new facility for the National Geospatial-Intelligence Agency (“NGA”).\n\nAppellant was served with process on March 18, 2016. On April 4, 2016, a commissioners’ hearing was held to determine the fair market value of the Property, which neither Appellant nor his attorney attended. In May 2016, the commissioners awarded $817,589.59. LCRA deposited the award, with interest, in the circuit court and took title to the Property. LCRA filed its exceptions to the commissioners’ award on May 31, 2016, and Appellant filed his exceptions to the commissioners’ award on June 13, 2016. On July 7, 2016, LCRA took the Property.\n\nIn May 2018, the exceptions filed by LCRA and Appellant proceeded to a jury trial, which lasted seven days.\n\nAppellant testified on his own behalf. He testified he began renting the Property in 1993 and bought the Property in 1996 for $200,000. Appellant testified the Property’s highest and best use was for redevelopment as a boutique hotel and the Property was worth $5.5 million on the date of the taking. Appellant testified he asked for the Property to be registered in the National Historic Registry in 2005 to “sav[e] the structure if anything should ever happen.” Appellant testified the Property was valuable to himself, the City, and the neighborhood because of its history. Appellant sought to admit photographic evidence of his experience in the construction and hotel industry and nearby developments in the City of St. Louis during his testimony, but the trial court excluded such evidence. Appellant also testified regarding an earlier sale of the Property from JTO, LLC (“JTO”), a company Appellant formed, to NorthSide Regeneration, LLC (“NSR”), a company owned by Paul McKee, for $3.75 million in 2011 (the “2011 Sale”). Appellant testified he transferred title to the Property to JTO. He testified NSR purchased the Property from JTO in an arms-length transaction. He testified the sale was structured as a “sale-leaseback” or “triple net lease,” where NSR would own the Property but lease the Property to another company called Wilco Leasing, which was created by Appellant’s then-wife. Under the triple net lease, Wilco Leasing would pay all insurance, taxes, repairs, and utility bills and NSR would collect $375,000 in rent payments per year. Appellant testified he self-financed the transaction and NSR agreed to pay him $3.75 million over five years at a 10% interest rate. Appellant would retain possession of the Property. He testified he did not consider the $3.75 million purchase price inflated. On cross-examination, Appellant testified he received no payment from NSR on the closing date. He testified he knew McKee was going to receive “a lot” of tax credits for NSR’s $3.75 million purchase of the Property.\n\nHe testified he could not recall an email he sent to NSR in November 2011 that stated NSR owed him a “[o]ne time principal payment of 50 percent of tax credits in Q1 2012.” Appellant testified he received $591,000 from NSR in January 2012 but denied the source of the $591,000 was tax credits. Appellant testified the Department of Economic Development disqualified the tax credits it previously granted McKee in March 2013 and all payments from NSR to JTO stopped in March 2013. Appellant testified he received $733,000 from NSR as of March 2013. Appellant agreed he and McKee thereafter “unwound” the 2011 Sale and conveyed the Property back to Appellant. On re-direct examination, Appellant testified he did not recall the Department of Economic Development disapproving of the ownerfinanced, sale-leaseback structure of the transaction between JTO and NSR.\n\nAppellant also sought to testify about a settlement he entered with AT&T Mobility (“AT&T”), a company that rented a space for a cell tower on the Property’s roof, after the Property was condemned. Appellant sought to testify he paid AT&T $65,000 to resolve any claims arising from the termination of AT&T’s lease with Appellant due to the Property’s condemnation and Appellant owed AT&T nothing further. The circuit court disallowed this testimony, stating “I think it is a matter that can be handled after the verdict in this trial.”\n\nAppellant next called William Otto Spence, his appraiser, as a witness. Spence testified he conducted a lengthy inspection of the Property four times but observed the Property on several other occasions. Spence testified the fair market value of the Property at the time of the taking was $4.93 million. Like Appellant, Spence testified the highest and best use of the Property was for conversion into a “lifestyle or boutique hotel.” In valuing the Property, Spence considered the 2011 Sale price of $3.75 million. Spence testified he met with McKee to discuss the 2011 Sale. He testified McKee told him the sale was conducted at arms-length and represented the market value of the Property. Spence testified the 2011 Sale was not a “sham sale” and he considered the source of NSR’s funding from tax credits irrelevant to his valuation of the Property. Spence testified he based his appraisal of the Property upon what was occurring in the Property in 2016 before Appellant moved out. He explained his appraisal included some photographs taken of the Property after the date of the taking because Appellant requested he wait until Appellant moved out of the Property to take photographs. Spence also based his valuation, in part, on the Property’s historic significance and its status in the National Historic Registry.\n\nAppellant also called McKee as a witness. McKee testified NSR purchased the Property from JTO in 2011 for $3.75 million with the triple net lease structure Appellant described in his earlier testimony. He testified he received tax credits from the 2011 Sale from the Department of Economic Development, but they were later denied. McKee testified NSR “unwound” the transaction with JTO after NSR paid JTO approximately $700,000. McKee testified the State asked him and Appellant to unwind the transaction between NSR and JTO. On cross-examination, McKee denied he would have been willing to overpay for the Property if he got 50% of the sale price back in tax credits. McKee also testified NSR entered into other transactions with Appellant to purchase other properties in the City of St. Louis. McKee testified these other transactions involved a million-dollar purchase price, no money exchanging hands at the closing, and a large payout of tax credits.\n\nLCRA called Laura Costello, the Director of Real Estate for the St. Louis Development Corporation, as a witness. Costello testified she inspected the Property in September 2016. She testified she saw chipped paint, nonfunctioning windows, and holes in the floor during her inspection. Costello admitted her inspection took place after the date of the taking. LCRA admitted photographs of Costello’s inspection of the Property into evidence. Costello testified she never instructed McKee to unwind the transaction between NSR and JTO.\n\nLCRA also called Kevin Schoenborn, an environmental company project manager, as a witness. Schoenborn testified he inspected the Property in March 2017 after Appellant moved out. He testified his inspection revealed damage around the skylights, chipped paint, nonfunctioning windows, a spongy roof, and tuck pointing issues. He also testified he observed the Property had poor structural integrity. LCRA also called Tom Mueller as a witness. Mueller testified he previously owned the Property and sold it to Appellant in 1996. Mueller testified he saw the inside of the Property after Appellant moved out. He testified the Property had no chipped paint, non-functioning windows, or water damage before he sold it to Appellant. Mueller testified the Property was not in better condition than when he sold it to Appellant.\n\nLCRA called John Neff, its appraiser, who testified the fair market value of the Property at the time of the taking was $573,000 and the Property’s highest and best use was as a warehouse. He testified he inspected the building in January and September 2016 and found it was in fair to average condition. He agreed with Schoenborn the Property had poor structural integrity. Neff testified the fact the Property belonged to the National Historic Register did not factor into his appraisal. LCRA also called several expert witnesses who testified the Property’s highest and best use was not for a hotel, as it had a poor location that experienced little traffic and would cost between $200,000-400,000 per room to convert the Property into a hotel. Lastly, LCRA called Sallie Hemenway, the Division Director at the Missouri Department of Economic Development, as a witness to discuss the 2011 Sale and the sales of other properties between NSR and Appellant. Hemenway testified the State initially issued tax credits to McKee for his acquisition of the Property in the 2011 Sale. Hemenway testified the State rescinded the tax credits previously granted for the 2011 Sale after discovering the improper owner-financed, sale-leaseback structure of the transaction between JTO and NSR."
  },
  "outcome": {
   "amount": 573000,
   "amountIsTheRequestedAmount": true,
   "date": "2020-04-21",
   "description": "After a seven-day jury trial in May 2018 the jury awarded $573,000, the value given by LCRA's appraiser and $244,589.59 below the commissioners' $817,589.59 award (the owner's appraiser said $4.93 million); the court denied a post-trial homestead allowance and taxed $21,207.13 costs against the owner. The Eastern District affirmed on April 21, 2020.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 573000,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "j-nazzaro-partnership-v-state-ny-2022",
  "source": {
   "caseName": "J. Nazzaro Partnership, L.P. v. State of New York",
   "court": "Supreme Court of the State of New York, Appellate Division, Second Department, on appeal from the Court of Claims",
   "docket": "2019-07827; 2022 NY Slip Op 02984",
   "decided": "2022-05-04",
   "url": "https://storage.courtlistener.com/html/2022/05/04/j._nazzaro_partnership_l.p._v._state_of_new_york.html",
   "excerptNote": "Verbatim from the facts portion of the decision (property, taking, Chase ground lease, and each side's highest-and-best-use and appraisal evidence at the nonjury trial). Removed: the opening paragraph (judgment amount and decretal paragraph), the Court of Claims' findings and the resulting damages and judgment figures, and all legal analysis. A page marker ([*2]) was removed. The judgment includes 'other damages not challenged on appeal' that the decision does not itemize, so the input has no evidence on those components. Official reporter copy: nycourts.gov reporter, 2022 NY Slip Op 02984."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent J. Nazzaro Partnership, L.P., owner of 705 Smithtown Bypass (a split-zoned commercial parcel ground-leased to JPMorgan Chase for a bank branch), in its Court of Claims claim for just compensation after the State's 2014 partial appropriation of 3,752 square feet plus a temporary easement. The claim is set for a nonjury trial on compensation.",
   "documentText": "On November 22, 2010, the claimant purchased real property known as 705 Smithtown Bypass (hereinafter the property) for $1 million. The property, which encompassed 49,034 square feet, consisted of two tax lots which the Town of Smithtown regarded as a single parcel. Both lots were split-zoned and included both NB (neighborhood business) and R-10 (residential) areas (see Code of the Town of Smithtown § 322-7[C][4]). Pursuant to deed restrictions imposed as a result of the property's history of use as a gas station, the residential portion could not be improved with a home or certain other uses for 50 years (i.e., until 2060).\n\nOn February 21, 2014, the New York State Department of Transportation (hereinafter the State) appropriated portions of the property consisting of 2,504 square feet and 1,248 square feet (3,752 total square feet), and a temporary easement of 3,775 square feet. The permanent taking, which amounted to 7.65% of the total area of the property, left a remaining parcel of 45,282 square feet.\n\nAt the time of the taking, the property was occupied by JPMorgan Chase Bank, N.A. (hereinafter Chase), pursuant to a triple net ground lease at an initial rent of $225,000 annually with planned increases at five-year increments. Subject to its lease, Chase improved the property with a 4,120-square-foot one-story building. Chase also created 31 parking stalls which occupied portions of the NB-zoned area and, pursuant to a special exception granted by the Town, 50 feet of the R-10-zoned area (see Code of the Town of Smithtown § 322-82[C][3][c]).\n\nThe claimant filed a notice of claim seeking just compensation for the portion of the property taken by the State. At a nonjury trial on the issue of compensation, the claimant's engineer and appraiser presented evidence that the highest and best use of the NB-zoned portion of the property was improvement with an 8,400-square-foot, two-story commercial building with parking and that the highest and best use of the R-10 portion was as additional parking to facilitate the expanded commercial use of the NB portion. Based upon that assessment, and employing an income capitalization approach that included the future anticipated income from the proposed improvements, the claimant's appraiser opined that the value of the property was $5.6 million before the taking and $3.9 million after the taking, resulting in damages of $1.7 million.\n\nIn contrast, the State presented evidence that the current use of the NB portion as a one-story commercial establishment was also its highest and best use and that, notwithstanding the limitations on development, the highest and best use for the R-10 portion was residential development upon expiration of the restrictions in 2060. The State's appraiser accounted for the loss of value caused by the development restrictions by applying an 80% discount to the appraised value of the property. The State's appraiser valued the NB portion at $842,712 and the R-10 portion at $30,626 prior to the taking and at $789,240 and $27,273, respectively, after the taking, for total damages of $56,825."
  },
  "outcome": {
   "amount": 113730,
   "amountIsTheRequestedAmount": false,
   "date": "2022-05-04",
   "description": "After a nonjury trial the Court of Claims largely adopted the State's appraisal (rejecting its 80% discount on the R-10 portion), found direct damages of $71,000 ($54,000 NB portion, $17,000 R-10 portion), and entered judgment for the principal sum of $113,730 including other damages not itemized in the decision. The Appellate Division, Second Department affirmed on May 4, 2022.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 113730,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "elpa-builders-v-state-ny-2021",
  "source": {
   "caseName": "Elpa Builders, Inc. v. State of New York",
   "court": "Supreme Court of the State of New York, Appellate Division, Second Department, on appeal from the Court of Claims",
   "docket": "2020-01684; 2021 NY Slip Op 04343",
   "decided": "2021-07-14",
   "url": "https://storage.courtlistener.com/html/2021/07/14/elpa_bldrs._inc._v._state_of_new_york.html",
   "excerptNote": "Verbatim from the facts portion of the decision (property, Taco Bell ground lease, the 2015 taking, the advance payment agreement, and the $2 million claim). Removed: the decretal paragraphs, the Court of Claims' finding and the judgment in the State's favor, and all analysis (including the adopted before-taking value, severance and tree awards). A page marker ([*2]) was removed. The decision describes neither side's appraisal figures, so the input has only the advance payment and the claimed amount. Official reporter copy: 2021 NY Slip Op 04343."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent Elpa Builders, Inc., owner of a Smithtown, New York parcel ground-leased to Taco Bell for a drive-through restaurant, in its Court of Claims claim for just compensation for the State's 2015 appropriation of two roadside strips (3,112 square feet) for a greenway. The owner accepted an advance payment under EDPL 304 and the claim is set for trial on the full compensation owed.",
   "documentText": "The claimant is the owner of a 53,645-square-foot parcel of real property located in Smithtown, which property has approximately 148 feet of frontage along New York State Route 347 and approximately 151 feet of frontage along Southern Boulevard. The property is subject to a long-term ground lease with Taco Bell, which built and maintains a fast-food restaurant with a drive-through on the property. In September 2015, the defendant, State of New York, appropriated two roadside strips of land from the property in order, inter alia, to construct a public greenway for pedestrians and bicyclists. The taking was comprised of a 13-foot-deep strip of land along Route 347 and an 8-foot-deep strip of land along Southern Boulevard, which totaled 3,112 square feet. The restaurant building was unaffected by the taking, but the taking encompassed a small portion of the property's frontage and parking, and included the removal of three mature trees from the property.\n\nThe claimant accepted an advance payment in the sum of $302,460 from the State for the partial taking pursuant to an advance payment agreement. The agreement provides that, in accordance with EDPL 304(H), if the claimant elected to have the ultimate amount of compensation determined by the Court of Claims, \"[i]n the event the amount [of just compensation] found by the Court is less than the amount of [the] advance payment, . . . the Court shall direct the Clerk to enter judgement dismissing the claim and awarding to the State the difference between the awards as found by the Court and the amount of said advance payment with appropriate interest.\"\n\nIn March 2016, the claimant commenced this claim, seeking $2 million in damages from the State as just compensation for the taking."
  },
  "outcome": {
   "amount": 283920,
   "amountIsTheRequestedAmount": false,
   "date": "2021-07-14",
   "description": "After trial the Court of Claims found just compensation of $283,920 (adopting a before-taking value of $2,510,000 with a minor adjustment, $30,000 severance damages and $26,500 for three trees), below the $302,460 advance payment, and entered judgment for the State for the $18,540 difference under EDPL 304(H). The Second Department affirmed on July 14, 2021. Amount used is the compensation found for the taking (the owner's net recovery beyond the advance was negative).",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 283920,
   "finalNote": "Affirmed; compensation of $283,920 was below the $302,460 advance, so the owner repays $18,540."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "kks-properties-slingerlands-bypass-2020",
  "source": {
   "caseName": "Matter of Acquisition of Real Property by the State of New York (KKS Properties, LLC, claimant)",
   "court": "Supreme Court of the State of New York, Appellate Division, Third Department, on appeal from the Court of Claims",
   "docket": "529374; 2020 NY Slip Op 06185",
   "decided": "2020-10-29",
   "url": "https://storage.courtlistener.com/html/2020/10/29/matter_of_acquisition_of_real_prop._by_the_state_of_new_york.html",
   "excerptNote": "Verbatim from the background (property, 2006 appropriation, prior proceedings) and the decision's descriptions of the parties' trial evidence (both appraisers' preappropriation valuations, the State appraiser's post-taking multifamily testimony, the claimant's access argument and engineer's opinion). Removed: the sentence reporting the first trial's award (reversed in 2014), the sentence reporting the 2018 award, the Court of Claims' findings (its own per-acre value and treatment of each appraisal), footnotes and all appellate reasoning. Two sentences are cut at a semicolon before the court's evaluation of them (the cut is marked by a period), so their second halves are omitted. The decision does not state either appraiser's after-taking value or damages total. Official reporter copy: 2020 NY Slip Op 06185."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent KKS Properties, LLC, owner of a 31.77-acre tract on New Scotland Road in the Town of Bethlehem (Albany County) zoned hamlet and commercial-hamlet, whose highest and best use is mixed-use office, retail and residential development, in its Court of Claims claim for direct and consequential damages after the State's 2006 appropriation of a 9.5-acre strip for the Slingerlands Bypass that split the tract and limited the western remainder to a 43-meter right of access. An earlier award was reversed for lack of competent valuation proof, and the claim is set for a new nonjury trial on damages.",
   "documentText": "In January 2006, claimant, KKS Properties, LLC, acquired title to a 31.77-acre parcel of real property located on New Scotland Road in the Town of Bethlehem, Albany County. In May 2006, as part of the construction of an extension to State Route 85 — also known as the Slingerlands Bypass (hereinafter the bypass) — petitioner, the State of New York, appropriated an approximately 9.5-acre strip of claimant's property pursuant to the EDPL, bifurcating the property from north to south and creating three individual parcels of property — the approximately 9.5-acre strip appropriated for the bypass, a 3.736-acre parcel to the east of the bypass (hereinafter the eastern parcel) and a 18.464-acre parcel to the west of the bypass (hereinafter the western parcel). Following the appropriation, the eastern parcel remained accessible via road frontage along New Scotland Avenue; however, access to the western parcel was reduced to a 43-meter legal right of access, as provided for in a reservation clause contained in petitioner's May 2006 appropriation map of the property.\n\nIn 2007, claimant commenced a CPLR article 78 proceeding seeking, among other things, certain injunctive relief, alleging that the proposed construction of the bypass denied it suitable access to the western parcel. In 2008, Supreme Court (Devine, J.) dismissed the petition.\n\nIn 2009, claimant commenced this proceeding seeking damages, alleging, among other things, that the conditional access to the western parcel resulting from petitioner's appropriation rendered said parcel unsuitable for any development in accord with its highest and best use.\n\nUpon remittal, claimant moved for summary judgment, seeking a declaration that the western parcel was landlocked. Petitioner cross-moved for partial summary judgment, seeking a declaration that the western parcel was not landlocked, as claimant was explicitly granted a 43-meter legal right of access to the bypass. The Court of Claims (Collins, J.) denied claimant's motion and granted petitioner's cross motion, finding that claimant was collaterally estopped from litigating whether the western parcel was landlocked as this issue had previously been litigated and resolved against claimant in the prior CPLR article 78 proceeding. Claimant appealed, and this Court affirmed (149 AD3d 1317, 1319-1320 [2017]).\n\nIn January 2018, a four-day trial ensued for purposes of determining the valuation of claimant's property and the appropriate amount of damages to which claimant was entitled as a result of petitioner's appropriation.\n\nThe parties agree that the highest and best use of the property prior to the appropriation was mixed used development, comprising office, retail and residential development. To that end, each party's appraiser utilized the sales comparison approach to calculate the property's preappropriation value. Claimant offered the expert testimony and appraisal report of Kenneth Gardner, a real estate appraiser, who set forth two alternative valuation scenarios with respect to the preappropriation value of the property. The first scenario, Alternative A, entailed dividing the property into two parcels for purposes of valuation — an approximately 23.3-acre parcel that Gardner determined was commercially developable and an 8.47-acre parcel that he determined was \"surplus acreage,\" not amenable to development. Gardner reviewed comparable sales and determined that the commercially developable portion of the property had a value of $92,000 per acre and the surplus acreage had a value of $9,500 per acre, resulting in a total preappropriation value of $2,224,065. The second scenario, Alternative B, entailed dividing the property into two separate parcels along the approximate boundary line between the zoning districts encompassed by the property, resulting in an 11-acre \"hamlet\" zoning parcel and a 20.77-acre \"commercial-hamlet\" zoning parcel. Gardner determined that the hamlet zoning parcel had a value of $136,000 per acre and the commercial-hamlet zoning parcel had a value of $35,000 per acre, resulting in a total preappropriation value of $2,223,000. In contrast, petitioner offered the expert testimony and appraisal report of Todd Thurston, a real estate appraiser. Thurston inspected the property, researched comparable sales and, after making certain adjustments for various constraints on the property, calculated the property's preappropriation value to be $45,000 per acre, for a total preappropriation valuation of approximately $1,430,000.\n\nTo that end, Thurston testified that a multifamily residential development was a legally permissible, physically possible and financially feasible use of the western parcel, and that said parcel could support the development of a 91 or 92-unit multifamily residential complex.\n\nIn opposition, claimant argued that petitioner's appropriation rendered the western parcel surplus land or acreage such that it was unsuitable for any development in line with its highest and best use.\n\nClaimant submitted the engineering report of Ransen Caola, a licensed professional engineer, who opined that the western parcel was rendered \"undevelopable\" as a result of the appropriation."
  },
  "outcome": {
   "amount": 744500,
   "amountIsTheRequestedAmount": false,
   "date": "2020-10-29",
   "description": "After a four-day January 2018 trial the Court of Claims credited the State's appraiser (with its own adjustments, preappropriation value $52,339 per acre or $1,662,810), found the western remainder's post-taking highest and best use was multifamily residential, and awarded KKS $744,500 in direct and consequential damages. The Third Department affirmed the amended judgment on October 29, 2020. (An earlier award of $532,000 had been reversed in 2014.)",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 744500,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "5th-and-walnut-v-des-moines-2026",
  "source": {
   "caseName": "5th and Walnut Parking LLC, 5th and Walnut Tower LLC, 5th and Court LLC, Justin Mandelbaum, and Sean Mandelbaum v. City of Des Moines",
   "court": "Iowa Supreme Court, on appeal from the Iowa District Court for Polk County (Business Specialty Court)",
   "docket": "No. 24-1886",
   "decided": "2026-06-12",
   "url": "https://storage.courtlistener.com/pdf/2026/06/12/5th_and_walnut_parking_llc_5th_and_walnut_tower_llc_5th_and_court_llc_1.pdf",
   "excerptNote": "Verbatim from Part I (Background Facts and Proceedings, sections A-E, selected paragraphs) plus the neutral list of the Developers' damages categories and the sentences stating the amounts they requested for categories (1-D), (2-A/B/D), (3) and (4), taken from Part III.B. Removed: the introduction, the Lincoln Savings/Bankers Trust financing and alley-delay paragraph and the May-September 2019 extension talks (length) (award and disposition), the Section 10.1(A)/10.4 contract text, several correspondence paragraphs, the City's counterclaims and summary-judgment procedure, the district court's findings and judgment, footnotes 1-2 and their markers, the sentence stating the affirmed Category (1) award, every sentence reporting how the district court ruled on each damages category, and all analysis and holdings. The foreclosure-fees figure is omitted because the only sentence stating it reports the court's finding."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the Developers (5th and Walnut Parking LLC, 5th and Walnut Tower LLC, 5th and Court LLC, and Justin and Sean Mandelbaum) in their breach-of-contract and related claims against the City of Des Moines under an urban-renewal development agreement for a downtown parking garage with retail space, a hotel/residential tower and a theater building, after the City issued default notices and the garage was lost to foreclosure. The case is set for a bench trial; the City has counterclaimed for breach.",
   "documentText": "In 2014, Matt Anderson, the City’s economic development director, approached Justin to discuss another lot near Court Avenue. Anderson told Justin to submit a developer-initiated proposal—a means of streamlining the sale of City land. Justin submitted his proposal. In the summer of 2015, the Des Moines City Council (City Council) voted to accept for consideration Justin’s proposal and to open a ninety-day competition period, during which time other developers could make a pitch for their projects. No developer submitted a counterproposal. In December of 2015, Justin and his team submitted a pro forma for the City’s consideration. The pro forma was notable for two reasons. First, part of Justin’s pro forma—and a fly in the ointment throughout this litigation—was a parking garage. Second, the pro forma contained a 5% development fee for Justin and his team’s work on the project. Pursuant to the pro forma, the City would pay that fee upon completion of the parking garage. Parking garages typically are not profitable on their own. So, to make the project work, Justin needed subsidies. To begin, the City agreed to sell Justin and his team a site for $4 million dollars, with a forgivable “economic development” loan for the same amount, meaning that Justin would acquire the land for zero net cash outlay. The City also offered tax incentives, bond financing, and shortfall loans to facilitate the project. In early 2017, after months of negotiations, Justin and the City reached a final development agreement (Development Agreement) for the project. The project was to consist of three elements: a parking garage with space for restaurants and retail stores, which was to be completed by August of 2020; a forty-story tower with a high-end hotel and residential lofts (the Tower), and a theater complex with an upscale dine-in movie theater and additional retail space (the Theater)—both of which were to be completed by August of 2028.\n\nBy finishing the parking garage first, Justin and his team would provide parking spaces for the City and revenue to pay off their forgivable loan. Article 8, Section 8.2(E) of the Development Agreement provided: E. Developer agrees that if the costs of constructing the Parking Garage exceed the Stipulated Price due to no fault of the City, then Developer shall be responsible for the increase in costs associated with completing construction of the Parking Garage. City acknowledges that City is not entitled to participate in any savings realized by Developer in the acquisition, construction or development of the Parking Garage or Parking Parcel, and that any savings or benefits realized shall accrue 100% to Developer.\n\nThis meant that if Justin and his team completed the garage under budget, then they were entitled to keep the amount saved.\n\nIn the event of a breach of this Agreement, in addition to such other rights as the aggrieved party may have hereunder, the aggrieved party may institute proceedings for damages for breach of contract. In any claim, action or civil proceeding wherein damages are sought for breach of this Agreement, City shall have the same rights and liabilities as a private non-governmental party for any breach of this Agreement.\n\nAlso in 2017, Justin formed three limited liability companies to manage the various aspects of the development. For the parking garage, he formed 5th and Walnut Parking LLC (Parking LLC). For the Tower, he formed 5th and Walnut Tower LLC (Tower LLC). And, for the Theater, he formed 5th and Court LLC (Court LLC). These entities, together with Justin and his brother Sean, will be referred to collectively throughout this opinion as “the Developers.”\n\nIn April 2018, the Developers and the City again discussed increasing the garage’s parking capacity. This time, they agreed to add another sixty parking spaces. The Bank wanted this update in writing. But when the Developers began pressing for the third amendment, the City grew reticent. At root, the City was unwilling to pay the Developers for additional parking spaces, despite previously agreeing to a per-space price formula. Months dragged on, and the parties could not reach an agreement about the additional parking spaces. Finally, in September, the City Council and the Developers agreed to a third amendment that incorporated the new parking spaces. For the entirety of the April to September delay, the Developers’ architects were unable to work on the development. While the Developers and the City were discussing the third amendment, the deadline to commence construction on the parking garage arrived. To avoid a default, the Developers negotiated with Sanders to get an informal extension of deadlines. Under this agreement, the Developers would reach a so-called “secondary closing” by August 10, 2018, and would begin construction of the garage by August 24, 2018. The Developers met neither of these deadlines. The City did not issue a notice of default for either of the missed deadlines. Ultimately, the third amended Development Agreement formally extended the deadlines for the parking garage; it left unchanged the October 31, 2019 deadline to begin construction on the Tower or Theater.\n\nShortly after the parties agreed on the terms of the third amended development agreement, the Developers began construction on the parking garage.\n\nAt their meeting in November, the Developers told the City that SCB (the architectural firm that the Developers had hired) was wrongfully withholding documents from the Developers. This, and other delays, led the Developers to request a yearlong extension on the deadline to construct the Tower. The City’s representatives were receptive to this proposal. A few weeks after the meeting, Carrie Kruse, an economic development coordinator working for the City, contacted the Developers and told them that they would have to present some of the revisions to their project to the Urban Design Review Board (UDRB). Justin presented the revisions, and, in December, the UDRB approved the new plans, with some comments from board members. Also in December, the Developers applied for a building permit for the Tower and Theater. They needed to apply for the permit during 2019 because the City was adopting a new building code in 2020, and the parties wanted to grandfather in the project under the old code. Still awaiting an amendment to the Development Agreement, the Developers met with City representatives on December 5. Sanders told the Developers that there was no political will to amend the Development Agreement unless the City received something in return. Sanders proposed that the Developers place $5 million dollars in an escrow account, which would serve as an incentive for the Developers to advance the project in a timely manner. Justin described this proposal as a shakedown. The meeting ended with the parties at loggerheads.\n\nMeanwhile, the Developers paid their architects, SCB, about $800,000 to release the design specifications that SCB had been withholding. This move freed up the designs for review by the Developers and eventual submission as part of the permitting process.\n\nThe letter went on to state that the City would agree to an amendment to the Development Agreement, including an extension of deadlines, so long as the Developers agreed to escrow $4 million dollars and adopt the above-mentioned receivership scheme, among other changes.\n\nNo amendment to the Development Agreement was presented to the City Council in March 2020. Nor did the City give the Developers a Notice of Default.\n\nOn March 11, 2020, the World Health Organization declared that the spread of the COVID-19 virus had reached pandemic levels. Two days later, the President of the United States declared a state of emergency. Two days after that, the mayor of Des Moines declared a city-wide state of emergency. On March 17, the Governor of Iowa issued a proclamation declaring a statewide emergency and mandating the closure of many businesses. On March 18, Justin sent a letter to Sanders. The letter invoked the Developers’ rights under Section 10.4 of the Development Agreement, stating: “Below is an email Nate sent to Roger providing notice of an enforced delay. We are required per the Development Agreement to provide this notice within 20 days of the onset of the enforced delay.”\n\nOn June 9, Justin met with Sanders and Kruse. During that meeting, Justin explained that the pandemic had collapsed traditional financing markets, and, therefore, the Developers’ original financing plan was no longer viable. According to Sanders, it was at this meeting that he lost confidence in the Developers’ ability to finance the remainder of the project. On June 24, the City issued its first notices of default to the Developers. The notices identified the act of default as the Developers’ failure to begin construction on the Tower or Theater by the October 31, 2019 deadline.\n\nOn June 30, the Developers’ attorneys sent a letter to the City demanding rescission of the default notices. They received no response. The City’s decision to issue default notices jeopardized the remainder of the development because the Bank, in funding the project, relied on the City’s involvement to mitigate risk. Essentially, the Bank had trusted the City to cover any debt service payments as they came due. When the City began to doubt the Developers’ ability to bring the project to completion, the Bank feared for its investment. This problem grew more acute as August 31—the maturity date of the Developers’ first construction loan—approached. When the Developers first realized, in spring 2020, that they would not be able to complete the parking garage by August 31, they informed the Bank and began discussing an extension. But although their past discussions indicated that the Bank would be willing to grant the Developers an extension, the tenor of the conversations changed as the likelihood that the City would issue default notices increased. The Bank warned the Developers that it would not grant an extension unless they were in compliance with the Development Agreement. On August 6, Justin wrote a letter to City Attorney Thomas Fisher. In that letter, he asked the City to rescind the default notices, and he explained that if the City pursued default remedies, then the Developers’ construction loan with the Bank would come due and the Bank would commence foreclosure proceedings. The City refused. On August 31, 2020, the Developers’ construction loan matured. Neither the City nor Bankers Trust extended the Developers’ deadlines.\n\nOn September 14, 2020, the Bank filed a petition to foreclose its mortgage and a motion to appoint a receiver to take over the parking garage project from Parking LLC. Just over a week later, the Developers filed a cross-petition against the City. The cross-petition brought claims for: (1) breach of contract on behalf of all cross-claimants, (2) tortious interference with an existing contract with the Bank on behalf of Parking LLC and the Mandelbaums, (3) indemnity on behalf of Parking LLC and the Mandelbaums, (4) declaratory relief on behalf of all cross-claimants, (5) interference with existing and prospective economic advantage on behalf of all cross-claimants, (6) injunctive relief against the default notices on behalf of all cross-claimants, and (7) injunctive relief against the conveyance from Bankers Trust to the City. On October 1, the district court appointed Christensen Development as receiver for the parking garage. On January 25, 2021, the district court authorized Christensen to sell the garage. The City purchased the property, extinguishing the Developers’ debt to the Bank. This prevented the Developers from completing the garage, earning the development fee, and collecting the savings off the stipulated cost of construction.\n\nFrom October 17 to 31, the parties tried their case to the bench.\n\nAt trial the Developers divided their alleged damages into four overarching categories and numerous subcategories. They are as follows: • Category (1): Garage Completion Damages, and its subcategories: o (1-A) Development fee on the garage. o (1-B) Savings on the garage. o (1-C) Interest savings on the garage. o (1-D) Jump ramp insurance claim on the garage.\n\n• Category (2): Lost Profits from Garage Operation and Ownership, and its subcategories: o (2-A) Net present value of residual equity value of garage. o (2-B) Net present value of garage management fee. o (2-C) Net present value of environmental expenses incentive payment. o (2-D) Market value of restaurant and retail space in garage (sales approach). • Category (3): Either: o (I) Lost Development Opportunity for the Tower, which includes reconciled profit calculation on residential development equity investment and reconciled profit calculation on hotel development equity investment; or o (II) Alternative Claims—Losses Suffered Regardless of Developers’ Equity Interest in Tower, which consists of four subcategories: ▪ (3-A) Architecture on tower paid by the Developers. ▪ (3-B) Predevelopment expenses on Tower paid by the Developers. ▪ (3-C) Tower hard costs funded by the Developer in the Garage (excluding restaurant). ▪ (3-D) Development fee on the Tower. • Category (4): Lost Development Opportunity for the Theater Building, and its subcategories: o (4-A) Architecture on the Theater paid by the Developers. o (4-B) Predevelopment expenses on the Theater paid by the Developers. o (4-C) Theater hard costs funded by the Developers in the Garage. o (4-D) Development fee on the Theater.\n\nIn addition to these primary damages, the Developers sought two categories of ancillary damages: foreclosure defense costs and a so-called “tax gross-up.”\n\nAccording to the Developers, the design firm that worked on the parking garage made numerous errors in designing the ramps that connect the levels in the parking garage. These errors allegedly damaged the Developers in an amount exceeding $1.3 million. The Developers claim they would have sued the design firm, but when the City purchased the garage, it abandoned the claim.\n\nEssentially, under subcategory (2-A), they requested the net present value of the cash flow from the operation of the parking garage, a sum of $4,357,750. Under subcategory (2-B), they requested the net present value of the management fee stipulated in the Development Agreement, a sum of $3,289,859. And, under subcategory (2-D), they requested the lost rental value of the retail and restaurant spaces built into the parking garage, a sum of $3,381,702.\n\nHere, the Developers argue that they took certain actions in reliance on the Development Agreement. Specifically, they spent money on architectural drawings and pre-development expenses for the Tower and Theater and on special features to integrate the parking garage with the Tower and Theater. For the tower, these expenses comprised subcategories (3-A, -B, and -C), summing to $8,063,027; and, for the Theater, these expenses comprised subcategories (4-A, -B, and -C), summing to $528,884."
  },
  "outcome": {
   "amount": 4353677,
   "amountIsTheRequestedAmount": false,
   "date": "2026-06-12",
   "description": "After an October 2022 bench trial the district court found the City breached the Development Agreement (and tortiously interfered with the construction loan) and awarded Parking LLC $4,353,677 in expectancy damages (garage development fee, savings under the stipulated price, and interest) against the City, rejecting all other claimed damages and the City's counterclaims; court costs were taxed to the City. The Iowa Supreme Court affirmed the breach-of-contract judgment and the $4,353,677 award on June 12, 2026, vacated the tortious-interference judgment, and affirmed the denial of the Developers' additional damages.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 4353677,
   "finalNote": "Damages affirmed; tortious-interference liability vacated without changing the amount."
  },
  "expectedRole": "Property Owner / Developer",
  "category": "zoning-land-use",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "pml-development-v-hawthorn-woods-2023",
  "source": {
   "caseName": "PML Development LLC v. The Village of Hawthorn Woods",
   "court": "Supreme Court of Illinois, on appeal from the Appellate Court, Second District (2022 IL App (2d) 200779), on appeal from the Circuit Court of Lake County",
   "docket": "No. 128770; 2023 IL 128770 (circuit court No. 15-CH-848)",
   "decided": "2023-06-15",
   "url": "https://storage.courtlistener.com/pdf/2023/06/15/pml_development_llc_v._village_of_hawthorn_woods.pdf",
   "excerptNote": "Verbatim from the Background, paras. 4-24 (omitting paras. 25-26, the court's colloquy, and all of para. 27 except its first sentence reporting the pretrial partial-summary-judgment ruling) and paras. 28-31 (pretrial and posttrial positions). Removed: paras. 1-2 (procedural history and dispositions), footnote 1 and its marker, para. 32 onward (reopened proofs, the circuit court's findings, its damages and fee awards, the appellate history) and all analysis."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent PML Development LLC, which bought a 62-acre parcel in the Village of Hawthorn Woods to operate a fee-based fill and grading project under a 2012 development agreement requiring it to donate the graded land to the Village, in its breach-of-contract claim against the Village over grading-permit delays and changing plan demands; the Village counterclaims that PML breached by failing to pay taxes, fund the drawdown account, convey the property and rebuild Kruger Road. The case is set for a bench trial.",
   "documentText": "¶ 4 In June and July 2012, PML prepared a set of grading plans for a 62-acre property within the Village and submitted those plans to the Village for preapproval before it purchased the property. The Village’s chief administration officer and Village clerk informed PML that they had no objection to the plans, and on September 7, 2012, PML purchased the property. ¶ 5 On October 11, 2012, PML and the Village entered into the Agreement regarding the use of the property. The Agreement included the following relevant terms. Recital B limited PML to adding 1.2 million cubic yards of fill. Recital F required a drawdown deposit to be executed before commencing work. ¶ 6 The parties agreed that, upon completion of the grading project but no later than December 31, 2015, PML would donate the entire parcel of land to the Village for a total sum of $1 by warranty deed free and clear of all liens, encumbrances, and special service area (SSA) assessments as of the date of conveyance. PML would pay all taxes while the property was in its possession, and the Village would assume responsibility for the taxes once PML conveyed the property to the Village.\n\n¶ 7 The Agreement also allowed the property to be accessed by Kruger Road. PML agreed to bring Kruger Road back up to current Village standards at the end of the project. PML would perform the reconstruction with an anticipated donation toward that reconstruction of $200,000.\n\n¶ 8 The Agreement provided that, before work could commence, PML would present the Village engineer with all plans, studies, reports, surveys, and other materials that might be necessary under the applicable Village codes and ordinances or that might be reasonably be requested by the Village engineer. The Village engineer would then approve the final plans if those plans satisfied the applicable codes and ordinances. The parties also agreed that the grading permit would be valid for two years from the date of issuance and that, if work was not completed within two years, a permit extension would be granted for an additional two years. The Agreement required PML to establish a drawdown account, and the funds from that account would be used to pay for inspections related to the grading, filling, sedimentation and soil erosion control measures, stormwater management, perimeter landscaping, and seeding operations.\n\n¶ 9 The Village originally approved the plans PML submitted, and PML began operations on the property in February 2013. However, the Village attempted to transform the Agreement by placing additional requirements on PML so that PML could fill and develop the land to conform with the Village’s concept plan for future development of a municipal campus on the property. From March 2013 through September 2014, the Village repeatedly required PML to revise its plans without citing any Village code or ordinance violations. Instead, the Village made its demands to accommodate the Village’s ever-changing concept plans. Despite this, PML sent revised plans to accommodate the Village’s demands. ¶ 10 On May 4, 2015, PML filed a three-count complaint against the Village alleging the Village interfered with PML’s work on the property. Count I of PML’s complaint sought declaratory relief so that PML could complete its work in substantial compliance with the Agreement. Count II sought mandamus relief directing the Village to comply with its obligations under the Agreement. Count III alleged a breach of contract claim and sought monetary damages for the Village’s breach along with a determination that PML should be excused from its obligation to convey the property to the Village. The complaint did not specifically allege that the Agreement should be terminated based on the Village’s alleged material breaches.\n\n¶ 11 The Village filed an answer, affirmative defenses, and counterclaims. The Village denied breaching the Agreement. The counterclaims alleged PML materially breached the Agreement for several reasons. Relevant to this appeal are the Village’s claims that PML failed to (1) pay the property taxes on the property (count IV) and (2) fund the drawdown account, which had a $58,103.25 deficit (count V). ¶ 12 On November 17, 2015, PML filed a mandamus petition. PML alleged that its incentive to enter into the Agreement was the potential income to be derived from charging its customers by volume for accepting fill for deposit on the property and then using that fill to grade the property. PML asserted that the Village’s misconduct had impaired any potential profit PML may have derived from the project. Specifically, the Village refused to issue the grading permit allowed under the Agreement. Instead, the Village interfered with PML’s operations and attempted to force PML to comply with the Village’s demands to conform the property to the Village’s conceptual plan, which differed substantially from the approved grading plans. PML requested a mandamus order directing the Village to issue the permit as required by the Agreement. ¶ 13 In response, the Village argued that PML breached the Agreement and should not be granted mandamus relief. The Village alleged that PML failed to pay the taxes for the property in violation of the Agreement. Consequently, PML could no longer convey the property free and clear of liens and encumbrances due to the tax delinquencies. ¶ 14 On January 15, 2016, the circuit court granted PML’s mandamus petition and ordered the Village to issue a permit to PML with a December 31, 2016, expiration. ¶ 15 In October 2016, the Village filed a motion to enforce the circuit court’s prior mandamus order and compel PML to complete its work by December 31, 2016. The Village argued that the Agreement did not contemplate PML operating on the property beyond the four-year period (2012-16). PML also continued to be in breach of the Agreement by failing to pay taxes on the property. The Village claimed that PML should not be allowed to reap the benefits of the project while avoiding the court’s orders and PML’s obligations under the Agreement. ¶ 16 PML filed a response to the motion to enforce the court’s mandamus order and included a cross-motion for mandamus relief. PML noted that the Agreement included a provision that allowed an automatic two-year extension if it had not completed the project. PML asserted that it had a right under the Agreement to continue to perform its operations and asked the court to deny the Village’s request to compel PML to finish the project by December 2016. As to its cross-motion for mandamus relief, PML asked the court to compel the Village to issue a permit extending the expiration by two years as required by the Agreement. ¶ 17 The Village also filed a motion for summary judgment. In this motion, the Village argued that PML materially breached the Agreement by failing to pay the property taxes and, as a result, PML could no longer convey the property to the Village free and clear of all liens and encumbrances as provided by the Agreement. Therefore, the Village requested summary judgment in its favor as to count IV of its counterclaims. ¶ 18 In response to the motion for summary judgment, PML argued that the failure to pay taxes was not a breach because the project had not yet been completed and PML could still redeem the taxes. ¶ 19 The Village also filed a motion to appoint a receiver. The Village contended that PML failed to pay the property taxes and caused the taxes to be sold at a tax auction. Consequently, it would be impossible for PML to convey the property to the Village, unless PML redeemed the taxes. The Village asked the court to compel specific performance by ordering PML to redeem those taxes or appoint a receiver to redeem those taxes on PML’s behalf. ¶ 20 On December 9, 2016, the circuit court extended its mandamus order and gave PML until December 31, 2018, to complete its work on the property pursuant to the Agreement. The court denied the Village’s motion to enforce the court’s prior mandamus order, motion for summary judgment, and motion to appoint a receiver.\n\n¶ 21 On August 7, 2017, the Village filed a motion for partial summary judgment on count IV of its counterclaims. Like the Village’s previous motion for summary judgment, this motion was also based on PML’s continued failure to pay the property taxes. ¶ 22 At a hearing on the motion, the Village argued that the Agreement required PML to pay the property taxes while PML possessed the property. Due to PML’s failure to pay taxes, third-party tax buyers purchased the unpaid taxes and now had liens on the property. The Agreement required PML to convey the property to the Village free and clear of all liens and encumbrances. ¶ 23 At the hearing, the court asked the Village’s counsel what its damages were, since the tax deed had not yet been issued and PML could presumably cure the tax deficiency. The Village responded that specific performance was one remedy provided by the Agreement, so damages were not required. The Village did not believe it was premature to seek relief, as it was attempting to protect its future interest in obtaining the property under the Agreement. Once the redemption period expired, it would be too late for the Village to obtain the property. ¶ 24 The court pointed out that the Agreement required PML to transfer the property no later than December 31, 2015. It asked why the property had not been transferred. According to the Village’s counsel, PML had not tendered the property and could not tender the property free and clear of the tax liens as required by the Agreement. PML’s counsel argued that the permit had been extended by the court’s first mandamus order to December 2016. The court, however, noted that December 2016 had come and gone as well. PML represented that it was ready and willing to convey the property to the Village at any time but that the Village refused to accept the conveyance. PML also claimed that its failure to pay the taxes was caused by the Village’s interference with its operations on the property.\n\n¶ 27 Ultimately, the circuit court granted the Village’s motion for partial summary judgment in part.\n\n¶ 28 Prior to trial, both parties submitted pretrial memorandums to the court. Both parties agreed that the Agreement was binding and enforceable. Each party asserted that it performed its obligations under the Agreement but claimed the other party should be liable for its alleged breach. The Village’s memorandum added the allegation that PML breached the Agreement by failing to reconstruct Kruger Road as required by the Agreement. ¶ 29 The cause went to trial on November 20, 2020.\n\n¶ 30 After trial, the parties submitted posttrial memorandums. In PML’s posttrial memorandum, PML maintained that the Agreement was valid and enforceable and that it performed its obligations under the Agreement. PML alleged that the evidence showed that the Village materially breached the Agreement by (1) failing to issue the proper grading permit, (2) imposing obligations on PML that were not part of the Agreement, and (3) interfering with PML’s means and methods of developing the property. PML also asserted that any claimed breach as to the drawdown account and Kruger Road reconstruction occurred after the Village materially breached. Thus, the Village could not recover. In addition, the Village hindered PML’s performance and caused PML’s inability to pay the taxes on the property. Further, the Village failed to mitigate its damages by rejecting PML’s offers to convey the property to the Village. ¶ 31 In the Village’s memorandum, it claimed that it performed its obligations and alleged that PML breached the Agreement by failing to (1) convey the property to the Village, (2) fund the drawdown account, and (3) reconstruct Kruger Road. As to damages, the Village argued that PML’s inability to convey the property frustrated the main purpose of the Agreement, the Village suffered damages based on PML’s failure to fund the drawdown account, and the Village suffered damages in excess of $200,000 caused by PML’s failure to restore Kruger Road. The Village asked the court to order PML to convey the property to the Village by warranty deed free and clear of all liens and encumbrances “in full compliance with the terms of the Development Agreement,” reconstruct Kruger Road, pay the amounts owed under the drawdown account, and pay the Village’s attorney fees. The Village did not request monetary damages caused by PML’s failure to convey the property."
  },
  "outcome": {
   "amount": 5349676.7,
   "amountIsTheRequestedAmount": false,
   "date": "2023-06-15",
   "description": "After the November 2020 bench trial the Lake County circuit court found the Village materially breached first and awarded PML $268,223.70 in lost revenue, $4,898,161 in added site-preparation costs and $183,292 in plan-revision costs (total $5,349,676.70), plus $1,571,795.60 in attorney fees and $2,654.74 costs, and entered judgment for PML on the Village's counterclaims. The appellate court vacated all damages (2022). The Illinois Supreme Court on June 15, 2023 reversed the appellate court, affirmed judgment for PML on its breach claim, but reversed on the Village's counterclaims and remanded for the circuit court to calculate the Village's damages, offset them, reconsider fees, and address unresolved challenges to PML's damages.",
   "attorneysFeesAtTrial": 1571795.6,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "reversed",
   "finalAmount": null,
   "finalNote": "Liability for PML affirmed, but remanded to compute the Village's offsetting counterclaim damages, revisit fees and the unaddressed challenges to PML's damages; no final net figure."
  },
  "expectedRole": "Property Owner / Developer",
  "category": "zoning-land-use",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "burns-concrete-v-teton-county-2020",
  "source": {
   "caseName": "Burns Concrete, Inc. and Burns Holdings, LLC v. Teton County",
   "court": "Supreme Court of the State of Idaho, on appeal from the District Court of the Seventh Judicial District, Teton County",
   "docket": "Docket Nos. 46827/47496",
   "decided": "2020-11-02",
   "url": "https://storage.courtlistener.com/pdf/2020/11/02/burns_concrete_v._teton_county.pdf",
   "excerptNote": "Verbatim from Part I.A (Factual Background) and Part I.B (Procedural History) through the summary of the damages-trial testimony. Removed: the syllabus and introduction (award amount and disposition), the post-trial contingency-fee agreement, the district court's findings of fact and conclusions of law and both final judgments' damages and fee figures, and all analysis. Prior appellate decisions on liability (Burns 2012, Burns 2016) are retained as procedural history."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent Burns Concrete, Inc. and Burns Holdings, LLC in their breach-of-development-agreement suit against Teton County, Idaho, after the County denied the height approvals needed for the 75-foot permanent ready-mix concrete plant the agreement required and then revoked authority for the temporary plant. Liability for breach has been established on summary judgment and the case is set for a trial on damages.",
   "documentText": "Burns Holdings, LLC and Burns Concrete, Inc. are Idaho business entities. Kirk Burns is the president of Burns Concrete and the manager of Burns Holdings. Burns Holdings and Burns Concrete are referred to together as “the Burns Companies.” In 2006, Burns Concrete purchased a 6.5-acre property (“the Property”) in Teton County. Burns Holdings applied to change the zoning of the Property from C-3 (commercial) to M-1 (light industrial) in order to build and operate a ready-mix concrete manufacturing facility on the Property. On February 26, 2007, the County approved the zone change with certain conditions, including that Burns Holdings enter into a development agreement with the County pursuant to Idaho Code section 67-6511A. The Property was located within the City of Driggs’ impact area, where the County and Driggs had agreed, pursuant to Idaho Code § 67-6526, that the Driggs zoning laws would apply. Driggs’ zoning ordinance provided that “any building or structure or portion thereof” could not exceed 45 feet in height unless approved by conditional use permit (CUP). On June 13, 2007, Burns Holdings applied for a CUP to build a permanent facility (the “Permanent Facility”) 75 feet in height. The application was first reviewed by Driggs’ planning and zoning department, which unanimously recommended approval by the County. The application was sent to the County. On August 31, 2007, Burns Holdings and the County entered into a development agreement (the “Development Agreement”). Paragraph 2.b of the Development Agreement required construction of the Permanent Facility to commence immediately upon execution. Importantly, Paragraph 2.b also required the construction of the Permanent Facility in accordance with elevation schematics showing a building 75 feet in height. It further required construction to be completed within 18 months, subject to acts of force majeure beyond Burns Holdings’ control. Paragraph 2.b also required the construction of a temporary facility (the “Temporary Facility”). The County had the authority to revoke the authority to operate the Temporary Facility if the Permanent Facility was not completed within the allowable time period. Paragraph 9 provided that the Development Agreement could be terminated, and the Property’s zoning reverted, if Burns Holdings or its successor failed to comply with the terms of the Development Agreement. Paragraph 10 required Burns Holdings to comply with all applicable laws. Paragraph 12 provided that the Development Agreement would run with the land.\n\nOn November 15, 2007, the County denied Burns Holdings’ CUP application. Burns Holdings sought judicial review of the denial. The district court upheld the County’s CUP denial and Burns Holdings appealed. This Court affirmed on the alternative ground that the Local Land Use Planning Act (“LLUPA”) required a variance, not a CUP, to modify the height requirements in a zoning ordinance. Burns Holdings, LLC v. Teton Cnty. Bd. of Comm’rs, 152 Idaho 440, 272 P.3d 412 (2012) (“Burns 2012”). Subsequently, Burns Holdings applied for a zoning variance to build the Permanent Facility to a height of 75 feet. The County denied this request as well. By letter dated April 9, 2012, the County revoked the authority to operate the Temporary Facility and demanded that the Temporary Facility be removed by July 1, 2012. On October 4, 2012, the County sent another letter to Kirk Burns reminding him of the April 9 demand to remove the Temporary Facility and requesting removal activity to begin immediately. In response, counsel for the Burns Companies sent a letter to the County asserting that the County’s October 4 letter constituted a breach of the Development Agreement because the Burns Companies’ time limit for constructing the Permanent Facility was tolled by the Development Agreement’s force majeure clause and the County had failed to provide the requisite notice of default and opportunity to cure. By letter dated November 5, 2012, the County’s prosecuting attorney notified the Burns Companies’ that the County rejected their demands, asserted that the force majeure clause was inapplicable, and threatened to file suit to compel the Burns Companies’ removal of the Temporary Facility. Subsequently, Burns Concrete executed a quitclaim deed in which it transferred 50% of its interest in the Property to Burns Holdings. A few days later, Burns Concrete and Burns Holdings executed an “Assignment and Assumption Agreement.” Through the Assignment and Assumption Agreement, Burns Holdings transferred to Burns Concrete an undivided interest in all of Burns Holdings’ rights arising from the Development Agreement. Similarly, Burns Concrete transferred to Burns Holdings an undivided interest in all of Burns Concrete’s claims related to the Property “and/or” the Development Agreement.\n\nOn May 21, 2013, the Burns Companies filed a complaint against the County that stated causes of action for breach of contract and rescission, declaratory judgment, and unjust enrichment. The County counterclaimed, alleging breach of contract and seeking declaratory judgment for the removal of the Temporary Facility. The Burns Companies subsequently filed a motion for partial summary judgment on the liability components of its claims, and the County filed a cross-motion for summary judgment on each of its claims. Following a hearing, the district court entered a memorandum decision and order on the parties’ cross-motions for summary judgment (the “first summary judgment order”) denying the Burns Companies’ motion for partial summary judgment and granting, in part, the County’s motion for summary judgment. The district court held that because the County’s refusal to grant zoning approval of a 75-foot structure was foreseeable, the force majeure clause did not excuse the Burns Companies’ failure to complete construction of the Permanent Facility within 18 months. It then entered a final judgment (the “first final judgment”) in accordance with its order. The Burns Companies filed a timely notice of appeal from the first final judgment.\n\nThis Court vacated the judgment of the district court and remanded the case for further proceedings. Burns Concrete, Inc. v. Teton Cnty., 161 Idaho 117, 384 P.3d 364 (2016) (“Burns 2016”). We held that the force majeure clause applied because the County’s decision to withhold zoning approval for a 75-foot Permanent Facility was not foreseeable given the terms of the Development Agreement and not within the Burns Companies’ control. Id. at 121, 384 P.3d at 368. Following remand, the Burns Companies filed a renewed motion for partial summary judgment. They sought summary judgment on their declaratory judgment claim and on the liability components of their breach of contract and rescission claims, leaving the issue of damages for trial. The district court entered an order (its “second summary judgment decision”) granting the Burns Companies’ renewed motion for partial summary judgment. The district court granted summary judgment on the liability component of the Burns Companies’ breach of contract and rescission claims. The Burns Companies had withdrawn their request for summary judgment on their declaratory judgment claim and also, apparently, on their unjust enrichment claim. The County then filed a motion in limine to exclude evidence of reliance damages at trial, arguing that only expectation damages were appropriate in this case. On the same day, the County filed a motion for reconsideration of the second summary judgment decision. The district court entered a memorandum decision and order in which it granted in part and denied in part both motions. Specifically, the district court denied the County’s motion to reconsider the grant of summary judgment in favor of the Burns Companies on their breach of contract claim, but vacated the portion of its previous order granting rescission of the Development Agreement. The district court denied the County’s motion in limine to the extent it sought to exclude evidence of reliance damages, but allowed the admission of evidence of losses Burns Holdings would have suffered if the County had not breached the Development Agreement. Finally, it deferred any determination as to prejudgment interest and whether Burns Holdings, as opposed to Burns Concrete, incurred all claimed damages.\n\nTrial was held on the issue of damages. Allen Barger, Burns Concrete’s controller, testified regarding the various exhibits he had prepared in support of the Burns Companies’ damages claims. He explained that Exhibit 8 was a summary all the expenditures that Burns Concrete had made in order to “get the [Temporary Facility] up and running.” Exhibit 8 was admitted. It contained over 7,000 line items, each associated with a particular category of expense. Barger testified that the total amount of damages listed on Exhibit 8 was $1,905,344.78, exclusive of prejudgment interest. Kirk Burns testified that shortly before Kathy Rinaldi’s election to the Teton County Board of County Commissioners, she wrote letters to concrete customers that effectively said, “[d]on’t use Burns Concrete.” Kirk Burns testified that this had an adverse effect on his companies’ operations. He also testified that following the County’s denial of the CUP request, newspapers ran articles that effectively stated his concrete plant was “extinguished.” This “pretty much stopped all the customers” because they thought he could no longer run the plant. The County’s expert witness Richard Hoffman, a forensic accountant, testified that the Burns Companies would have suffered a loss in operating the Temporary Facility even if the County had not breached the Development Agreement. However, he also testified that the Burns Companies would have produced a net income by 2017."
  },
  "outcome": {
   "amount": 1049250.9,
   "amountIsTheRequestedAmount": false,
   "date": "2020-11-02",
   "description": "After the damages trial the district court found $1,461,393.53 of the claimed $1,905,344.78 was spent in reasonable reliance on the Development Agreement, then deducted $412,142.63 (Temporary Facility sales less cost of sales) and awarded $1,049,250.90 in reliance damages, denied prejudgment interest, and awarded attorney fees of $792,529.25 plus $16,254.50. The Idaho Supreme Court on November 2, 2020 affirmed liability and the $1,461,393.53 reliance finding but vacated the judgment, holding the $412,142.63 reduction unsupported and instructing the district court to reverse it on recalculation, and vacated the fee awards for explanation.",
   "attorneysFeesAtTrial": 808783.75,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "modified",
   "finalAmount": null,
   "finalNote": "Vacated and remanded for recalculation; the final figure is pending rather than computed by us."
  },
  "expectedRole": "Property Owner / Developer",
  "category": "zoning-land-use",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "indian-river-county-v-ocean-concrete-2020",
  "source": {
   "caseName": "Indian River County v. Ocean Concrete, Inc. and George Maib",
   "court": "Florida Fourth District Court of Appeal, on appeal from the Circuit Court of the Nineteenth Judicial Circuit, Indian River County",
   "docket": "No. 4D19-3611 (L.T. Case No. 312007CA011589)",
   "decided": "2020-11-25",
   "url": "https://storage.courtlistener.com/pdf/2020/11/25/indian_river_county_v._ocean_concrete_inc._and_george_maib.pdf",
   "excerptNote": "Verbatim from the Background section and the opinion's description of the landowner's value-related testimony (Part B). Removed: the introductory paragraph (disposition), footnotes 1-4 and two footnote markers, the sentence reporting the jury's award and the final judgment with prejudgment interest, and all analysis and holdings. The opinion states no appraisal figures for either side, so the input contains no dollar values."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent George Maib, owner of an 8.5-acre light-industrial parcel in Indian River County, Florida bought for a concrete batch plant, in his Bert J. Harris, Jr. Private Property Rights Protection Act claim after the County rezoned to prohibit batch plants. The appellate court has already held the County inordinately burdened the property, and the case is set for a jury trial on the amount of compensation.",
   "documentText": "The landowner purchased approximately 8.5 acres of real estate in Indian River County, intending to build a concrete batch plant. When the landowner bought the land, it was zoned as light industrial, and a concrete batch plant was an allowable use under the then-existing land development regulations. However, after the landowner took steps to develop and build the concrete batch plant on his property, the County amended the zoning regulations to exclude concrete batch plants as an allowable use. Doing so precluded the landowner from building a concrete batch plant on the property as planned.\n\nThe landowner sued the County under the Bert Harris Act, seeking compensation for the loss of his ability to construct the concrete batch plant, attaching an appraisal report in support. See § 70.001(4)(a), Fla. Stat. (2008). However, the County declined to settle, and the claim ultimately proceeded to trial alongside the landowner’s Penn Central taking and procedural and substantive due process violation claims. Importantly, the trial court limited trial to liability only, with a jury considering the procedural due process claim and the trial court considering the landowner’s Penn Central taking, Bert Harris Act, and substantive due process violation claims. Both the jury and the court found in the County’s favor on all counts.\n\nThe landowner appealed, raising three issues, and this Court affirmed on two and reversed on one. Ocean Concrete, Inc. v. Indian River Cty., Bd. of Cty. Comm’rs, 241 So. 3d 181, 183 (Fla. 4th DCA 2018). Specifically, this Court held that the trial court erred in concluding that the landowner failed to prove entitlement to relief under the Bert Harris Act. Id. We held that the landowner had a reasonable investment-backed expectation in constructing a concrete batch plant and that the trial court erred in finding that a concrete batch plant was not an “existing use” for the property. Id. at 188–90. We therefore reversed and remanded to the trial court for a trial on damages under the Bert Harris Act. Id. at 190.\n\nPrior to the trial on damages, both the landowner and the County filed a multitude of motions in limine. Specifically, the landowner sought to exclude testimony from two of the County’s expert witnesses, Dr. Fishkind (“economist”) and Mr. Underwood (“appraiser”). The County intended to offer the economist to testify on the market for concrete batch plants and whether the proposed plant was economically feasible, and intended to offer the appraiser to testify that the concrete batch plant was not the highest and best use either before or after the change in land development regulations. The County, in turn, sought to exclude the landowner’s opinion testimony as to his property’s value.\n\nThe trial court granted the landowner’s motions in limine to exclude the testimony of the economist and the appraiser. The court ruled that the economist’s proffered testimony was contrary to the Bert Harris Act, which requires that the property be valued as though the owner had the ability to attain his reasonable investment-backed expectation (in this case as a concrete batch plant). The court also ruled that the economist’s testimony was contrary to this Court’s prior decision in Ocean Concrete Inc., which found that a concrete batch plant was considered an “existing use” that created a value in the property greater than the fair market value of the actual, present use or activity on the real property as vacant land. 241 So. 3d at 188. Similarly, the court excluded the appraiser’s testimony because it sought to value the property as vacant land with a potential use other than as a concrete batch plant. The trial court also excluded the appraiser’s testimony because it was based in part on the economist’s testimony as to the economic feasibility of concrete batch plants.\n\nThe trial court, however, denied the County’s motion in limine to exclude the landowner’s opinion testimony as to the value of his own property. The trial court reasoned that it is the general rule in Florida that a property owner may testify as to the value of his or her own property.\n\nSubsequently, at trial, the court denied the County’s requests to reconsider the exclusion of the economist and the appraiser.\n\nThe landowner testified that after he purchased the property, he hired a team of professionals, surveyors, and individuals to advise him on the property. He testified that he made physical alterations and improvements to the property after purchasing it, such as clearing the land, re-sleeving an old well, putting in two five-inch wells, installing another well for potable water, and relocating 473 palm trees to the property’s perimeter to act as a buffer. He also testified his concrete batch plant was going to be state of the art and the property’s slope and triangular design along its rail side, plus its natural buffer zones, added value for his intended use."
  },
  "outcome": {
   "amount": 2000000,
   "amountIsTheRequestedAmount": false,
   "date": "2020-11-25",
   "description": "At a four-day jury trial in September 2019, with the County's economist and appraiser excluded, the jury awarded the landowner $2 million; final judgment was entered for $2 million plus $1,302,577 in prejudgment interest. The Fourth District affirmed on November 25, 2020. Amount used excludes prejudgment interest.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 2000000,
   "finalNote": "Affirmed (plus $1,302,577 prejudgment interest)."
  },
  "expectedRole": "Property Owner / Developer",
  "category": "zoning-land-use",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "cvs-v-carmichael-2021",
  "source": {
   "caseName": "Georgia CVS Pharmacy, LLC v. James Carmichael",
   "court": "Court of Appeals of Georgia (Second Division), on appeal from the State Court of Fulton County; affirmed by the Supreme Court of Georgia, Georgia CVS Pharmacy, LLC v. Carmichael, 316 Ga. 718 (2023) (No. S22G0527)",
   "docket": "A21A0677",
   "decided": "2021-11-08",
   "url": "https://efast.gaappeals.gov/download?filingId=1260bd18-1067-424b-9622-9592df19d165",
   "excerptNote": "Verbatim from the opening paragraph (first two sentences), the trial-record facts, and CVS's arguments as stated in Divisions 1, 1(b) and 2. Removed: every sentence stating the jury's verdict, its fault apportionment or the adjusted damages figure, the standard-of-review passage, footnotes 1-2 and the sentences they interrupt (including CVS's 'main contention' about the acquaintance, which straddles a footnote), the licensee and verdict-form arguments, and all appellate analysis and holdings."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the injured customer, who was shot during an armed robbery in the parking lot of a CVS store on Moreland Avenue in Atlanta and sued the store operator, Georgia CVS Pharmacy, LLC, for negligent security in the State Court of Fulton County. CVS contends the attack was not reasonably foreseeable, that the customer had superior knowledge of the danger, and that better lighting or guards would not have prevented it. The case is set for jury trial.",
   "documentText": "One evening in December 2012, James Carmichael was shot multiple times by an unknown assailant in an Atlanta CVS parking lot, leaving him with multiple severe long-term injuries. Carmichael brought this premises liability case against CVS, arguing that CVS failed to take adequate security measures to protect the property.\n\nThe record adduced at trial shows that on December 20, 2012, at around 6:40pm, Carmichael was driving through Atlanta on his way home to Alabama when he decided to stop at a CVS on Moreland Avenue for some toiletries. While there, Carmichael called an acquaintance, Frankie Gray, and asked Gray to meet him at the CVS to complete a previously discussed sale of an iPad. Carmichael thought the CVS store “was a safe place to meet Mr. Gray” because “CVS is a national chain.” Carmichael parked by the front door of the CVS store to meet with Gray. After Carmichael met with Gray and Gray left, an unknown man jumped into Carmichael’s car, put a “big” gun to Carmichael’s head, threatened to kill him, and said, “Give me your money.” Carmichael “took everything out” and pleaded for his life. Carmichael then grabbed his own pistol and attempted to shoot, but the gun jammed. The perpetrator then fired several rounds into Carmichael’s stomach, back, and shoulder. After the perpetrator fled, Carmichael ran into the store for help before collapsing. Carmichael was comatose for about a month afterward, and he has since undergone multiple surgeries and continues to suffer from permanent nerve damage, hearing loss, speech deficiencies, and chronic pain. Carmichael also incurred medical bills in the amount of $725,800.\n\nCarmichael filed this premises liability action against CVS, arguing that CVS failed to take adequate security measures to protect the property, such as by having security guards present or having improved lighting in its parking lot.1\n\nAt trial, many current and former Moreland Avenue CVS store employees testified as to the store’s conditions. Numerous employees testified that the store was located in a high-crime area. CVS’s employees and managers considered the parking lot at the Moreland Avenue store unsafe, to the point that male employees regularly walked female employees to their cars. The employees would also park close to the building because of the spotty lighting in the parking lot. Two employees respectively rated the safety problems at the store as an “8” and “9” out of ten. Three employees testified that they were “not surprised” that Carmichael was shot on the premises. Ceilia Wilson, a supervisor with CVS, testified that the store previously had security guards that provided a “good deterrent” and made her feel safer, but they were removed in 2010.\n\nThe witnesses at trial testified that, after security was removed, at least three violent crimes occurred at the Moreland Avenue store. Patricia Ham, a former cashier at the store, testified that, in February 2011, a robber approached her at the register, showed her what she “believe[d] to be a handgun,” threatened to kill her, and demanded money. Cierra Langford, a CVS customer, testified that, in June 2012, a robber approached her in the parking lot after she left the store. The robber followed her to her car, which was “parked right in front,” and “hit [her] in [the] head and took [her] purse.” Holly White, a CVS shift manager, testified that, in November 2012, a robber approached her in the store and demanded at gunpoint that she open the cash registers. Following these crimes, Langford filed an incident report with CVS, and Ham and White both requested security from CVS based on their respective incidents. Carmichael’s expert witness testified that “there’s an overwhelming body of research which confirm[ed] that [armed security] has a high deterrent effect.” In the expert witness’s opinion, if CVS had a security guard present, “the robbery more likely would have been prevented.” The expert witness also reviewed the lighting at the Moreland Avenue store’s parking lot and testified that, in his opinion, it was spotty and inconsistent, and a uniform lighting would “facilitate better visibility in the area to deter loitering, trespassing, [and] any of those undesirable activities.” The investigating officer also testified that he found “armed security effective” and that “in [his] experience . . . people don’t rob and shoot people while an officer is sitting there.” Finally, CVS’s corporate representative, Andrew Edwards, also testified in his deposition (which was read to the jury) that security guards were an effective deterrent, that “CVS wouldn’t hire security guards if they didn’t believe they were effective,” and that “sufficient lighting” could “be a deterrent to violent crime.”\n\nSpecifically, CVS argues that (1) Carmichael failed to produce evidence showing that the attack was reasonably foreseeable to CVS; (2) the undisputed evidence showed that Carmichael had superior knowledge of the danger; and (3) Carmichael’s contention that increased lighting or a security guard presence would have prevented the attack was too speculative.\n\nCVS further argues that Carmichael “kept a loaded gun handy because he knew his business was risky” and failed to take care of his own safety by shooting first.\n\nAlthough law enforcement arrested Gray in connection with the incident, the charges “fizzled out” because they did not find evidence that Gray and the shooter were working together.\n\nCVS next argues that the trial court erred by failing to instruct the jury that the “foreseeability of a criminal attack is negated when the plaintiff had superior knowledge, [such] as when an assault arises out of a pre-existing private relationship between the plaintiff and the attacker which was wholly unconnected with the premises.”"
  },
  "outcome": {
   "amount": 42750000,
   "amountIsTheRequestedAmount": false,
   "date": "2023-06-29",
   "description": "A Fulton County jury returned a total verdict of $45,000,000, found CVS 95% at fault and the claimant 5% at fault (0% to the shooter and to the acquaintance), and awarded an adjusted $42,750,000 against CVS. The trial court denied CVS's motions for new trial and j.n.o.v. The Court of Appeals of Georgia affirmed on November 8, 2021, and the Supreme Court of Georgia, on certiorari, affirmed on June 29, 2023 (316 Ga. 718), holding that, under the jury instructions given, the verdict apportioning no fault to the shooter was not inconsistent. Amount recorded is the adjusted (net of comparative fault) award; no attorney's fees are stated.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 42750000,
   "finalNote": "Affirmed by the Court of Appeals (2021) and the Supreme Court of Georgia (2023)."
  },
  "expectedRole": "Injured Party / Claimant",
  "category": "premises-liability",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "jack-v-eldorado-casino-2019",
  "source": {
   "caseName": "Yasheka Jack v. Eldorado Casino Shreveport Joint Venture, L.L.C., Eldorado Shreveport #1, L.L.C. and Eldorado Shreveport #2, L.L.C.",
   "court": "Louisiana Court of Appeal, Second Circuit, on appeal from the First Judicial District Court, Caddo Parish (No. 580048)",
   "docket": "52,454-CA",
   "decided": "2019-01-16",
   "url": "https://www.la2nd.org/wp-content/uploads/2022/09/52454ca.pdf",
   "excerptNote": "Verbatim from Facts and Procedural History and the 'Overview of relevant testimony' subsections on fault and on future lost wages (both sides' lay, medical, vocational and economic witnesses), trimmed for length to selected paragraphs. Removed: the opening paragraph (states the disposition), the jury's findings and itemized award, the judgment total and its footnote, the JNOV ruling, the statements of assignments of error, and every Analysis subsection and holding."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent a casino patron who injured her back when an Eldorado Casino cocktail server spilled hot coffee on her at the slot machines in Shreveport; she later underwent a two-level lumbar fusion and sued the Eldorado Casino Shreveport entities in the First Judicial District Court, Caddo Parish, Louisiana. Eldorado blames an unidentified patron for bumping the server and disputes her loss of earning capacity. The case is set for jury trial.",
   "documentText": "This matter arises out of injuries sustained by Jack at the Eldorado Casino in Shreveport, Louisiana, and the subsequent suit for damages filed against Eldorado. Jack’s injury occurred on November 9, 2013, when a beverage server employed by Eldorado, Denise Ramone, spilled hot coffee on Jack, which caused Jack to twist suddenly out of the chair on which she was seated and injure her back in the process. Jack filed a petition for damages against Eldorado on October 3, 2014. Eldorado answered and asserted several affirmative defenses, notably which Jack’s injuries were proximately caused by a person or entity other than Eldorado.\n\nPrior to trial, Eldorado filed a motion in limine seeking to exclude from evidence the portions of Jack’s medical expenses that were written off, claiming Jack never actually incurred or had an obligation to pay the full amount of the expenses, and thus, the collateral source rule does not apply. The trial court denied Eldorado’s motion, holding the collateral source rule does apply to write-offs negotiated by Jack’s private insurance provider, to whom she had paid monthly premiums. Accordingly, Jack’s medical records that were admitted into evidence during the trial were redacted to exclude the amount of the insurance payments and write-offs and, thus, reflected the full amount of medical expenses charged to Jack. Following the ruling on its motion, Eldorado failed to proffer into evidence any proof or information regarding the specific amounts of the write-offs.\n\nTrial commenced on September 11, 2017, wherein 11 witnesses testified. Following the conclusion of testimony, Jack moved for a directed verdict on comparative fault regarding Eldorado’s affirmative defense of negligence on the part of an unknown patron. The motion was denied.\n\nJack testified that on the night her injury occurred, she had met her two aunts, Mary Williams and Tolonia Bryant, at the Eldorado Casino. The three were sitting in chairs at the penny slot machines. Jack and Williams were sitting side by side with an empty chair between them, while Bryant was sitting across the aisle with her back to the machine, facing Jack and Williams. Jack stated there was suddenly a very hot sensation going down her back, saturating her pants and chair. She jumped out of the chair, turned and threw her body out to get her back off the chair. Jack identified the Eldorado waitress seated at the defense table, Ramone, as the waitress who spilled the hot coffee on her. Jack stated Ramone gave no explanation regarding what caused her to spill the drinks on Jack. Ramone just kept apologizing and asked if Jack wanted her to get her supervisor. Jack testified that no one who appeared to be a fellow Eldorado patron approached afterwards. On cross-examination, Jack testified that at the time her injury occurred, she did not see what caused Ramone to spill the tray of drinks because she was looking in the other direction and she does not know if someone bumped into her or not.\n\nRamone then testified on cross-examination that it is part of her responsibility as a cocktail waitress at the Eldorado Casino to organize drinks on her tray using a certain method in order to ensure the tray is well balanced and avoid spilling the drinks. This method requires that in the event there is hot coffee on the tray, it should be placed in the dead center with the heavier drinks immediately around it and the lighter drinks along the edges of the tray. Ramone further testified it was her responsibility and part of her training to be aware of rowdy patrons and prepared to avoid their sudden movements. She stated patrons were expected to be rowdy, and it was normal and reasonable for them to make sudden movements such as jumping out of their chair. Regarding the moments leading up to Jack’s injury, Ramone testified the coffee still had steam rolling off it, and while it started out in the center of her tray, as is protocol, she was not sure whether it was still in the center of the tray at the time of the accident because she had delivered several drinks and picked up several empty glasses since originally organizing her tray. She testified that when she entered the aisle, Jack was seated on the left side and there was another patron whose identity is unknown seated on the right side. Ramone testified the unknown patron stood from her chair causing the chair to slide backward and the back of the chair to bump into Ramone’s right hip. This bump then caused her to lose her balance and the balance of the tray and stumble forward, to the left, toward Jack. This movement caused the drinks on her tray to topple over in a domino effect and the hot coffee to spill over the side of the tray onto Jack. Ramone explained that the unknown patron’s action of pushing her chair back was neither unusual nor unreasonable, but there was no way for her to anticipate the bump and avoid it.\n\nHowever, Ramone testified the video did not show the accident but showed both immediately before and after the accident; in other words, the casino’s surveillance video does not contain the precise footage which should have captured the incident.\n\nTolonia Bryant testified that she was at the Eldorado Casino with Williams and Jack on the night Jack was injured, and she was sitting behind them, across the aisle. She had her back to the slot machine and was sitting facing Williams and Jack. Bryant testified she saw Ramone stumble and spill the drinks on Jack.\n\nJack testified that at the time of her injury, she was the office manager at Velocity Care, a medical office where she had been employed for two years. She earned a yearly salary of approximately $33,000 and was a single mother of three.\n\nIn November 2015, due to her continued pain and upon the recommendation of Dr. Euby Kerr, M.D., at the Spine Institute, Jack underwent a two-level, 360-degree lumbar fusion surgery. Jack had three discs removed from her spine, which were replaced with artificial discs that were screwed into her spine. Since the surgery, Jack continues to experience pain and pressure in her lower back. She explained her pain level increases as her activity level increases and stated she continues to receive injections in her sacroiliac joints. Jack further testified that as of the date of trial, she had not been released by her doctor to return to work but she would if she could because she enjoyed her job, was good at it, and needed the income.\n\nOn cross-examination, Jack testified she last worked in October 2015, has not been released by Dr. Kerr to return to work, and had not seen Dr. Kerr since December 2016. She confirmed she never asked her employer for any help or accommodations to continue work and had not applied for any other jobs. She did testify, however, that she had applied for Social Security disability and had been denied.\n\nDr. Kerr explained his ultimate course of treatment was to perform a 2-level 360-degree lumbar fusion on Jack, which he accomplished on November 20, 2015. He discussed the nature and mechanism of the pain caused by Jack’s spinal injuries. He testified the surgery was successful and without it, Jack’s tear and bulge would not have healed on its own, but normally this type of procedure only provides about 70-75% relief. Following the procedure, Dr. Kerr recommended Jack undergo sacroiliac injections and also referred her to pain management. He testified Jack was still experiencing pain associated with her injury at the Eldorado Casino and she may need another surgery in the future to address it.\n\nDr. Stokes testified he did not believe Jack was employable at the time of trial and more likely than not, she would not be able to return to work in her capacity as an office manager at Velocity Care. He explained Jack currently has no earning capacity because no one has said she can go back to any kind of work, so she was looking at a 100% loss in earning for the remainder of her work life expectancy. When asked to look on the “bright side,” Dr. Stokes testified that hopefully, the most Jack could probably do would be part-time, light office management work, at approximately 20 hours per week. He provided a list of jobs he felt Jack could possibly perform part-time in the future, which included an office clerk or receptionist, office manager, administrative assistant, telephone clerk, and/or ticket taker. He further testified her earning capacity at any of these type of jobs would be between $8,507 and $11,242, which would, at the most optimistic estimate, still give Jack a loss of earning capacity between $21,757 and $24,492 per year.\n\nThe video deposition of John W. Theriot was taken during litigation and played for the jury at trial. Theriot was accepted as an expert in forensic economics, forensic accounting, and economic loss valuation. He testified in his deposition that he had reviewed Jack’s earning records from 2008 to 2016, Dr. Stokes’ report, Jack’s deposition, and the deposition of Dr. Kerr, and then compiled an economic loss report based on that information. The report calculated how much of her salary Jack lost and would lose in the future due to her injury. Theriot testified that to calculate Jack’s future lost income, he used a generally accepted table that was published in the Journal of Forensic Economics, which calculated work life expectancy based on information provided. Theriot testified that in Jack’s case, her work life expectancy was 19.24 years, which he thought was very reasonable because Jack was only 41 at the time of trial. He then multiplied 19.24 by the base wage of $39,766, which was the salary Dr. Stokes reported Jack would have been able to earn had she not been injured and could have completed her associate degree. This method brought Theriot to the conclusion that if Jack was unable to return to work, considering discounts to account for investment earnings and inflation, her future lost earnings would be $692,802. Using the same method applied to the amount of $11,242 that Dr. Stokes had reported Jack could earn working 20 hours a week, Theriot also calculated that Jack would sustain a future loss of earnings totaling $496,945 if she were able to return to work part time. Likewise, Theriot testified that assuming Jack could return to work full time making $22,485 per year, her future lost earnings would be $301,069. Using the base wage of $33,000 instead of the base wage Jack could have earned had she completed her associate degree, Theriot concluded Jack’s future lost wages would be: $574,925 if she did not return to work; $379,067 if she returned part time making $11,242; and, $183,192 if she returned full time earning $22,485.\n\nThe defense’s witnesses then testified. Dr. Carl Goodman was accepted as an expert in orthopedic medicine and testified he was hired by Eldorado to perform an independent medical examination of Jack. He testified the methodology of his independent medical examinations consists of taking a history from the patient, conducting a physical examination, and reviewing medical records. He testified that it was his opinion Jack could have suffered a small annular tear in her back as a result of the subject incident. He explained that while he believed Jack was obviously having pain, other than medication for the pain, he did not believe she needed any more treatment, including but not limited to a future surgery or steroid injections.\n\nOn cross-examination, Dr. Goodman testified that due to the back injuries Jack sustained at the Eldorado Casino, Jack would have difficulty doing her job working as an office manager at Velocity Care, sitting or standing for eight hours at a time, and turning quickly. As a result, she would likely miss time from work in the future. He agreed that to a reasonable medical probability, Jack sustained a permanent injury as a result of the accident at the Eldorado Casino.\n\nDr. Allison further testified Jack did have some limitations evident in the functional test, but he thought she could return to work full time performing sedentary to light work with restrictions. He testified Jack could tolerate sitting a maximum of 5.25 hours a day but not for more than one hour at a time without getting up and walking around. Dr. Allison testified that with accommodations, Jack could perform the job of office manager, but the physical demands of a specific occupation often vary from job to job.\n\nOn cross-examination, Dr. Allison testified that based on the physical demands of office manager contained in the dictionary of occupational titles, Jack did not have the functional ability to perform 33% of the general job of office manager. However, he testified that based on the information provided by Jack regarding her duties as office manager at Velocity Care, specifically, she did not have the functional ability to perform 60% of her former duties at Velocity Care. He testified that more likely than not, Jack had reached maximum functional improvement with her injuries and the work restrictions being placed on her should be considered permanent.\n\nKenneth Brister was accepted as an expert in vocational rehabilitation and testified that he was hired by Eldorado to perform an assessment of Jack.\n\nBrister testified that based on his review of Dr. Allison’s report and the medical information he understood to come from Dr. Kerr, it was his opinion Jack should be able to return to work in job positions designated as sedentary to light duty, with some limitations in both of those areas.\n\nBrister testified his opinion was Jack had not suffered a loss of earning capacity. However, he further testified his opinion would likely change if both Jack’s treating physician and the independent medical examiner indicated she could not return to work, in which case, she would have a loss of earning capacity. He also testified that if Jack could not get her degree because of this accident, she would have a loss of future earning capacity.\n\nTim Shaughnessy was accepted as an expert economist and testified that he was hired by Eldorado to evaluate Jack’s claim for damages. He explained his method for determining Jack’s future lost wages required taking the difference between Jack’s anticipated earning during her work life expectancy in the earning path she was in prior to her injury and the earning path that she was in after her injury. He then translated that difference into a present value that if put into a bank account where it would earn interest, would equal that difference over the span of Jack’s work life. He testified that based on Brister’s report and testimony, Jack has no loss of earning capacity; therefore, it was his opinion that she, accordingly, had no loss of future earnings."
  },
  "outcome": {
   "amount": 1429928.7,
   "amountIsTheRequestedAmount": false,
   "date": "2019-01-16",
   "description": "A unanimous jury assessed 100% of the fault to the casino's server (none to the unknown patron) and awarded $237,124.79 past medical, $577,698 future medical, $51,646 past lost wages, $317,460 future lost wages, $235,000 in general damages across pain, mental anguish and loss of enjoyment categories, and $1,000 scarring. The trial court entered judgment for $1,429,928.70 (the appellate court notes the items actually sum to $1,429,928.79) and denied JNOV, including the request to reduce past medicals by insurer write-offs. The Second Circuit affirmed on January 16, 2019. No attorney's fees.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 1429928.7,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Injured Party / Claimant",
  "category": "premises-liability",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "pilot-travel-centers-v-womack-2024",
  "source": {
   "caseName": "Pilot Travel Centers, LLC and Gina Franklin, Individually v. Willa Womack",
   "court": "Court of Appeals of Mississippi (en banc), on appeal from the Circuit Court of Hinds County, First Judicial District",
   "docket": "2023-CA-00035-COA",
   "decided": "2024-12-17",
   "url": "https://courts.ms.gov/images/Opinions/CO180911.pdf",
   "excerptNote": "Verbatim from the FACTS (paragraphs 3-5), the defendants' contentions on dangerous condition and notice (paragraphs 8, 15, 18), record facts about the general manager, the vestibule doors and the video recited in paragraphs 21-23, and the orthopedic evidence and pretrial motion practice in paragraphs 32-38. Removed: paragraphs 1-2 and 6 (verdict, statutory reduction, judgment, post-trial motions), all standard-of-review and case-law discussion, the court's analysis and holdings, the expert-qualification rulings, and the damages-remittitur section (paragraphs 46-51, whose only medical-expense figure is stated together with the jury's award)."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent a customer who slipped on a collapsed wet-floor sign in the entry vestibule of a Pilot Travel Center in Hinds County, Mississippi, striking her head and knees; she later needed knee surgery and has sued Pilot Travel Centers, LLC and its general manager for premises liability in the Hinds County Circuit Court. Pilot contends a fallen safety sign is not an unreasonably dangerous condition, that a customer knocked it over, and that ten minutes was too short to charge it with notice; it also disputes that the fall caused the need for bilateral knee replacements. Mississippi's statutory cap on noneconomic damages applies. The case is set for jury trial.",
   "documentText": "Womack suffered injuries to her neck, back, and knee when she slipped and fell on a collapsed wet-floor sign as she entered Pilot around 11 a.m. on January 6, 2020. According to the testimony of a former Pilot employee who was working at the time of Womack’s fall, employees usually mopped the convenience store’s floors each morning between 5:30 a.m. and 6 a.m. To alert customers that the floor might be wet, employees would set out wet-floor signs. On the morning of Womack’s fall, a wet-floor sign stood inside the store’s vestibule, which was a small enclosed area that separated the parking lot from the store’s interior. The vestibule had a set of two glass doors on each side. One set of glass doors led to the store’s parking lot and gas pumps, and the opposite set of glass doors led into the main area of the store. ¶4. At 10:50 a.m. on January 6, 2020, the wet-floor sign was still in place. At that time, Pilot’s security cameras recorded a customer knocking over the sign as he exited the doors leading from the main part of the store and proceeded through the vestibule on his way to the parking lot. Over the next ten minutes, the collapsed wet-floor sign remained on the vestibule floor as customers continued to enter and exit Pilot. At several different points during the ten-minute interval, Pilot’s security cameras captured various customers stepping on, slipping on, or skirting around the collapsed sign. The security cameras also captured Franklin, Pilot’s general manager, walking directly in front of, nearby, or facing the doors leading into the vestibule as she set up a hot dog station a few feet away. ¶5. Around 11 a.m., Womack entered Pilot from the parking lot. As Womack walked diagonally across the vestibule to enter the main part of the store, she slipped on the collapsed wet-floor sign, hit her head on the glass doors leading into the store, and then struck her knees on the vestibule floor. Ultimately, Womack required an ambulance to transport her to the hospital for treatment.\n\nHere, the Appellants contend that a collapsed wet-floor sign fails to constitute an unreasonably dangerous condition sufficient to impose liability on them for Womack’s fall. They instead argue that the collapsed wet-floor sign was “a safety feature, not an unreasonably dangerous condition” and that “it would turn premises-liability law on its head to find negligence based on items used to prevent injuries.”\n\nThe Appellants next argue that even if Womack demonstrated the existence of a dangerous condition, another customer’s act of knocking over the wet-floor sign could not impute knowledge of the condition to them. The Appellants also argue that the trial evidence failed to establish that they had either actual or constructive knowledge of the collapsed sign.\n\nHere, the Appellants assert that Womack cannot “attribute the tripping hazard to Pilot” because it was “undisputed that a departing patron, not a Pilot employee, knocked over the sign.” Moreover, the Appellants contend that ten minutes provided an insufficient length of time for Pilot to have known about the collapsed sign.\n\nPilot’s general manager, Franklin, testified that she performed a safety walk of the premises when she first arrived at the store around 8 a.m.\n\nThe vestibule received a high volume of foot traffic as various customers continuously—and sometimes simultaneously—entered and exited the store. The video footage from Pilot’s cameras showed that although the doors on both sides of the vestibule were made of clear glass, the doors leading from the vestibule to the parking lot had large stickers across them that obstructed an approaching customer’s view into the vestibule. In addition, Womack testified that at the time of her fall, sunlight shone on the vestibule doors facing the parking lot, which further decreased her ability to see inside the vestibule before she entered.\n\nBy contrast, the glass doors on the interior-store side of the vestibule were free of any stickers or signs and allowed a person standing nearby to look into the vestibule with an unobstructed view. In fact, Franklin acknowledged during her testimony that her view into the vestibule was unobstructed and that she was close enough to the vestibule to be able to see the wet-floor sign. Indeed, the video footage showed that at multiple points during the ten-minute interval between the collapse of the wet-floor sign and Womack’s accident, Franklin was in the vicinity of the doors leading to the vestibule. The video footage reflected that Franklin walked directly back and forth in front of the glass doors, walked a few feet away from the doors, and stood facing directly toward the glass doors as she set up the hot dog station just inside the store.\n\nDr. Hosemann noted in his IME findings that Womack had reported experiencing “very minimal achy pain in her knees” prior to her fall inside Pilot’s vestibule. As of the date of the IME, Dr. Hosemann found that Womack had meniscal tears in her right knee and “end-stage osteoarthritis” in both knees. Dr. Hosemann opined that the “fall may have resulted in the meniscal tears” and had “dramatically aggravated” Womack’s preexisting knee conditions, which included her osteoarthritis and pain. Most importantly, Dr. Hosemann found that Womack’s fall had “significantly altered the natural course of her osteoarthritis” and had led “to the need for knee replacement much sooner than had she not fallen.” Dr. Hosemann concluded that Womack would be unable to “gain any lasting relief without undergoing bilateral total knee replacement.” ¶33. Dr. Hosemann’s subsequent deposition testimony further reflected the opinions provided in his IME report. According to the deposition excerpts contained in the record, when asked what led him to opine that Womack’s fall may have caused the meniscal tears in her right knee, Dr. Hosemann responded as follows: “Because meniscal tears can often times be caused from falls, and apparently, she had a fairly significant fall that resulted in her having to go to the hospital that day. So certainly a twisting knee type injury can result in a meniscus tear.” Because only an MRI of Womack’s right knee had been taken after her fall, Dr. Hosemann could not state whether Womack also had any meniscal tears in her left knee.\n\nRegardless of when Womack’s meniscal tears occurred, Dr. Hosemann opined that Womack needed knee surgery because of the fall and its aggravation of her preexisting knee conditions. At the time of Dr. Hosemann’s deposition, Womack had undergone surgery on her right knee but still awaited surgery on her left knee. During his deposition, Dr. Hosemann was asked whether he could “tie the need for a left knee total knee procedure to” Womack’s fall. He answered, “Yes . . . .” He then explained that Womack “fell on both her knees, and they’re arthritic. And she had to go to the ER, and she went to the doctor several times. It sounds to me like [the fall] really made her symptoms dramatically worse.” In response to additional questions from Womack’s attorney, Dr. Hosemann reiterated that Womack had preexisting osteoarthritis in both her knees that the fall aggravated, and based on the information Womack had provided to him, the fall was the reason she required knee surgery.\n\nPrior to trial, the Appellants moved for partial summary judgment as to Womack’s knee injuries. They argued that Dr. Hosemann’s testimony had failed to establish that Womack’s fall caused the meniscal tears in her right knee. As a result, the Appellants asserted that Womack had failed to sufficiently prove that her fall caused injuries that required her to undergo knee-replacement surgery. ¶36. In responding to the Appellants’ motion, Womack provided an affidavit from Dr. Hosemann that stated the following: My opinions were and still are [that] Willa Womack had a fall on January 6, 2020[,] at the Pilot store where she landed on her knees. It was my opinion that the fall caused trauma to her knees and aggravated her preexisting condition of osteoarthritis. As I previously stated in my report and deposition, it was and still is my opinion that the fall and injury to her knees was the cause of her knee pain and the cause for her needing a right knee and left knee bilateral total knee replacement. My opinion was that she also had medial and lateral meniscal tears in her knees. I do not understand the legal terms attorneys use so I stated the fall “may have” caused the meniscal tears that then led to a surgery. So that the record is clear on legal terminology[,] it is my opinion that Willa Womack’s fall on January 6, 2020[,] caused the meniscal tears. Because Willa Womack reported she fell[,] I can say within a reasonable degree of medical probability that the fall caused the meniscal tears. ¶37. The Appellants then filed a reply to Womack’s response and argued that Dr. Hosemann’s affidavit attempted to change his testimony to include a new opinion about the meniscal tears. The Appellants asserted that the circuit court should exclude any change to Dr. Hosemann’s opinions because the change lacked a reliable basis and had been untimely provided. ¶38. At a hearing on several pre-trial motions, the Appellants’ attorneys argued the issues with Dr. Hosemann’s opinions that they had raised in their reply to Womack’s response to their motion for partial summary judgment. The Appellants again asserted that Dr. Hosemann’s affidavit had provided a new opinion as to Womack’s meniscal tears that was unreliable and untimely. In its subsequent order, the circuit court found that genuine issues of material fact existed as to Womack’s alleged knee injuries. As a result, the circuit court denied the Appellants’ motion for partial summary judgment as to that issue."
  },
  "outcome": {
   "amount": 1393000,
   "amountIsTheRequestedAmount": false,
   "date": "2024-12-17",
   "description": "The jury found the defendants' negligence the sole proximate cause of the fall and awarded $393,000 in economic damages (past and future medical expenses) and $3,000,000 in noneconomic damages. The circuit court reduced the noneconomic award to the $1,000,000 statutory cap (Miss. Code Ann. 11-1-60(2)(b)), entering an amended final judgment for $1,393,000, and denied JNOV or new trial. The Court of Appeals of Mississippi, en banc, affirmed on December 17, 2024, rejecting the dangerous-condition, notice, expert and further-remittitur arguments. No attorney's fees.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 1393000,
   "finalNote": "Affirmed at the capped $1,393,000."
  },
  "expectedRole": "Injured Party / Claimant",
  "category": "premises-liability",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "trout-v-shani-dev8-2025",
  "source": {
   "caseName": "Cheryl Trout, et al. v. Jay Shani DEV8, L.L.C., d.b.a. Mr. Hero",
   "court": "Ohio Court of Appeals, Eighth Appellate District (Cuyahoga County), on appeal from the Cuyahoga County Court of Common Pleas (No. CV-21-955789)",
   "docket": "113965 (2025-Ohio-832)",
   "decided": "2025-03-13",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2025/2025-Ohio-832.pdf",
   "excerptNote": "Verbatim from Part I (Facts and Procedural History), from the agreed statement of the case read to the jury through the defendant's directed-verdict motions. Removed: the opening paragraph (states the holding), the paragraph stating the jury's verdict and award and the post-trial motion, the assignments of error, footnote 1, and all of Part II (law and analysis)."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent a customer who slipped on liquid and fractured her kneecap, later requiring two surgeries, at a Mr. Hero franchise restaurant in Brook Park, Ohio; she sued the franchisee-operator, Jay Shani DEV8, LLC, for negligence (with a loss-of-consortium claim for her late husband's estate) in the Cuyahoga County Court of Common Pleas. The restaurant denies any liquid was on the floor and says there is no evidence of how long any hazard existed. The case is set for jury trial.",
   "documentText": "The following summary of events was agreed to by the parties and read by the judge at the start of the trial: The plaintiff, Cheryl Trout, alleges that she slipped and fell inside a Mr. Hero restaurant while walking to the counter to pick up food after having ordered the food a few minutes previously while standing at the same counter. Ms. Trout blames her fall on an accumulation of liquid on the floor. Jay Shani Dev 8, the company, which is the defendant in this case, denies any liquid was on the floor. The Mr. Hero restaurant was operated by Jay Shani Dev 8, LLC, under a franchise agreement with Mr. Hero. The plaintiff, Cheryl Trout, claims to have fractured her right kneecap. She additionally seeks damages for loss of consortium to her late husband, David Trout, who was not present in the restaurant at the time of her fall. (Tr. 71-72.)\n\nTrout testified at trial that on June 7, 2021, she went to the Mr. Hero on Smith Road, walked up to the counter to place her order and pay and then walked to the front of the store and sat in a chair by the window. (Tr. 875.) She did not notice anything wrong with the floor the first time she walked across it. (Tr. 920.) Trout testified that another customer went up to the counter to get his order and that she would have “been aware of the commotion” and seen if he had spilled “a whole drink.” (Tr. 924.) Trout then went up to the counter to get her order, taking a slightly different route up to the counter but in the same general area where she had previously walked. (Tr. 926-928.) Trout slipped on her way up to the counter and landed on her right knee. (Tr. 887.) After her fall, she sat on the floor and felt “something wet soaking into [her] pants.” (Tr. 880, 929.) The store was clean other than the spot where she fell, and she did not notice any liquid on the floor either before or after her fall. (Tr. 926, 930-931.) Trout suffered a fractured patella on her right kneecap that ultimately required two surgeries. The Mr. Hero franchise where Trout fell is owned and operated by Jay Shani, and Restaurant Developers Corporation (“R.D.C.”) is the franchisor. (Tr. 613.) Jay Shani is owned by Viren Patel (“Viren”), Archna Patel (“Archna”), and Mike Patel. Viren and Archna, who are brother and sister, were both working at the Mr. Hero location on the day Trout fell. (Tr. 612.) Also working with them that day was their cousin Meet Patel (“Meet”). (Tr. 419.) At the time Trout fell, Viren was in the back operating the grill and training Meet, and Archna was handling customers at the counter. (Tr. 81, 191, 419.) Because of COVID-19 restrictions, the chairs and tables had been moved to the side and were not available for dine-in use. (Tr. 497- 498.) Archna testified she did not see anything on the floor that would have caused a fall either before or after Trout fell and that she would have seen a spill from her position at the cash register. (Tr. 500, 567.) Viren inspected the floor after the fall and did not see any liquid substance. (Tr. 506.) Viren testified that after Trout’s fall, he viewed the surveillance-camera footage starting about five minutes before she fell to the time of the fall. He perceived that the video did not show anyone spill anything on the floor during that five-minute time frame. (Tr. 479-481.) He also did not see anything in the video that would have caused a fall. (Tr. 479.) When asked if “someone could have been in there 20 minutes before and spilled and [he] wouldn’t have seen it by looking at the video,” Viren answered “Yes.” (Tr. 482.) The surveillance video was never saved, so after seven days it was automatically overwritten. (Tr. 483.)\n\nViren is the only person that viewed the surveillance footage before it was overwritten. On February 7, 2022, Trout filed a second amended complaint alleging a claim of negligence against Jay Shani and a loss-of-consortium claim on behalf of her husband David Trout (“David”). A claim against R.D.C. was later dismissed. Following David’s death, Trout was substituted as executor of his estate.\n\nFollowing protracted litigation, the case was tried before a jury beginning on February 5, 2024. Throughout the trial, there were continual references by Trout’s counsel as to whether this Mr. Hero location followed the “safety rules” derived from R.D.C.’s operating standards manual given by R.D.C. to the franchise owners. Specifically, the testimony centered around the manual’s requirement that employees clean during “slow times,” the existence and placement of rugs on the floor, and employee training. Jay Shani moved for a directed verdict after Trout’s counsel’s opening statement, arguing “there was no evidence as to how the liquid got there or how long it was there.” (Tr. 321-322.) The trial court denied the motion, pointing out that no evidence had yet been presented. (Tr. 323.) A second motion for a directed verdict was made, and denied, at the conclusion of the trial."
  },
  "outcome": {
   "amount": 1300000,
   "amountIsTheRequestedAmount": false,
   "date": "2025-03-13",
   "description": "The jury found the operator negligent and on February 12, 2024 awarded the claimant $1,300,000 in noneconomic damages; the trial court denied the operator's motion for JNOV or new trial. The Eighth District reversed on March 13, 2025, holding there was no evidence of constructive notice of the liquid, and reversed the denial of JNOV, which leaves the claimant with nothing; the operator's argument that Ohio's noneconomic-damages cap should have been applied was not reached. No later Ohio Supreme Court merits opinion appears in the Reporter of Decisions. No attorney's fees.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "reversed-rendered",
   "finalAmount": 0,
   "finalNote": "Reversed: JNOV should have been granted for the restaurant operator."
  },
  "expectedRole": "Injured Party / Claimant",
  "category": "premises-liability",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "walmart-v-leverette-2024",
  "source": {
   "caseName": "Walmart Stores East, LP v. Bettie Leverette",
   "court": "Court of Appeals of Georgia (Fourth Division), on appeal from the Georgia trial court case no. 18C06082 (the opinion does not name the trial court)",
   "docket": "A24A0115",
   "decided": "2024-05-10",
   "url": "https://efast.gaappeals.gov/download?filingId=7f690487-1379-4cfd-a92b-cc3bd5e95c36",
   "excerptNote": "Verbatim from 'The Incident', 'Leverette's Medical History Following the Incident' and 'The Lawsuit and Trial' sections, through the parties' closing arguments, the nominal-damages jury charge and the verdict-form request. Removed: the opening summary paragraph (states the verdict and disposition), the lead-in clause 'Viewed in the light most favorable to the jury's verdict' sentence, two sentences interrupted by footnotes 1 and 2 (the original complaint's claims and one sentence of the defense neurologist's cervical-MRI testimony), the footnotes, the verdict, the motion for new trial and the trial court's order, and all appellate analysis and holdings."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent a 72-year-old shopper who, while seated in a motorized cart in a Walmart store in Covington, Georgia, was struck by two store employees pulling a loaded pallet jack; she sued Walmart Stores East, LP for negligence and negligent training and supervision (punitive damages have been dismissed on summary judgment). Walmart disputes that the contact caused any lasting injury and attributes her decline to preexisting conditions. The case is set for jury trial.",
   "documentText": "Leverette, who was 72 years old and suffered from a myriad of health issues, including chronic obstructive pulmonary disease (COPD), congestive heart failure, chronic kidney disease, emphysema, hypertension, and arthritis, was sitting in a motorized shopping cart. Two Walmart employees were using a manual pallet jack to move a 2,000-pound load down an aisle, with one employee pushing and the other pulling backward. It is undisputed that they ran into Leverette. The Walmart employee walking backward and pulling the pallet jack described the incident as follows: I bumped into Ms. Leverette and I pushed back against the scorpion box to stop it from moving any further. Then I asked her if she was all right, if I had harmed her in any way. She told me she was fine, and I believe that’s all. I just continued on with pulling the scorpion box after she had moved out of the aisle. When asked to describe the impact, the employee stated, “[v]ery light, not harsh at all,” and said his shoulder made contact with Leverette. The employee testified that as he was walking backward, he looked frequently over his shoulder to check the path, but he had not seen Leverette. Leverette’s granddaughter was bending over and did not see the moment contact occurred. She asked Leverette if she was okay, and Leverette replied that she thought so but seemed “a little confused.” Before leaving the store, Leverette and her granddaughter filled out an incident report, in which Leverette stated that she had been “hit . . . full force in the back of [the] head and shoulder.” When asked by Walmart personnel whether she needed paramedics, Leverette declined. Later that evening, Leverette went to the emergency room for head pain and blurred vision. According to the treating physician at the emergency room, a head CT scan showed no sign of injury and he found no signs of a concussion. Leverette was discharged with a diagnosis of “non-specific head injury.”\n\nImmediately following the incident, Leverette reported to her primary care provider, who referred her to a neurologist. One month after the incident, Leverette again presented to her primary care provider, complaining of a weeks-long, severe headache with blurred vision and that she “cries for no reason.” From June to July of 2018, Leverette was in the hospital for renal failure, receiving dialysis. Leverette first saw a neurologist, Dr. Angela Ashley, on July 11, 2018, and was diagnosed with post- concussion syndrome. Shortly after, Leverette again was admitted to the hospital for cardiac complications. By December 2018, Leverette was reporting dizziness, loss of balance, lightheadedness, blurred vision, and difficulty walking with an ongoing headache in the back of the head. Leverette took Gabapentin and received injections to alleviate the headache pain, and wore Scopolamine transdermal patches to help with the dizziness. Leverette was hospitalized for five days in December 2018, for COPD and pneumonia. In January 2019, Leverette reported to her primary care provider that the headaches had become more frequent and more severe and that she had fallen twice in the last year, did not sleep much, and felt depressed. In August 2019, Leverette reported that medication was not helping her headaches, and that she was continuing to experience sleep disturbance, vertigo, severe back pain, and “mood disturbance.” Leverette was hospitalized in November 2019, for acute COPD exacerbation and in January 2020, for pneumonia. In July 2020, Leverette reported to her primary care provider that her headache “pain level is 9/10” and that she was experiencing nausea with the headaches. A few months before the trial took place in 2022, Leverette was admitted to the hospital for emphysema. During her trial testimony, Leverette admitted that she had complained of headaches and neck pain prior to the incident at Walmart. Leverette’s daughter, a nurse, testified that after the Walmart incident, Leverette has had more severe headaches, gets dizzy quickly and has trouble walking, constantly complains of pain in her head and neck, and suffers from nausea. According to Leverette’s daughter, Leverette’s personality is not the same, she cries a lot, and seems depressed. Leverette’s treating neurologist, Dr. Ashley, testified that her overall assessment is that Leverette sustained a concussion as a result of the injury at Walmart and developed post-concussion syndrome, meaning she is “in the very small percentage of patients who reach past the one[-]year mark and haven’t had complete recovery of their symptoms.” She further clarified that “post-concussion syndrome is a very specific diagnosis that means you had a concussion, your symptoms have been present for a prolonged period of time, and you continue to have things like headaches, dizziness, fatigue, problems with your mood, problems with your memory, difficulty tolerating stress, alcohol, or emotion[.]” When asked about Leverette’s preexisting medical conditions, Dr. Ashley testified, it was a slippery slope; and as a result of that [Walmart] injury and the medicines that she was given to treat the injury, she experienced a progressive decline that it would be very difficult to disentangle from that inciting event. . . . [S]he did have a decline in her overall health including complications of the problems that she already had. As far as Leverette’s prognosis, Dr. Ashley testified as follows: The fact that she has not made significant improvement in the entire . . . two years that I’ve been taking care of her, I do not believe that it is likely that she will get complete resolution of her headaches. I think it’s possible that she could get some improvement in her balance. . . . And the prognosis for significant cognitive recovery after two years is minimal. . . . [H]er current level of functioning is what we can expect from her here on out. Dr. Sean Mahan, Leverette’s treating radiologist who reviewed MRIs of her brain from July 2018 and April 2019, testified that Leverette had “white spots in the brain [that] should not be there,” which “represent[ ] areas of brain injury.” He explained that “these are what they call nonspecific, meaning they could be caused by many things . . . [including] traumatic brain injury,” but that “this person needs to be evaluated by a clinical doctor [to] determine if the patient actually has [a] traumatic brain injury.” Dr. Mahan testified that the white matter lesions “are in the location that is commonly associated with traumatic brain injury,” and that based on the location of the lesions, “this patient may be manifesting symptoms that are being identified by other people as memory loss.” According to Dr. Mahan, “for [Leverette’s] age, the rest of her brain, except for these white matter lesions, is extremely healthy . . . [and] otherwise normal.” Dr. Mahan explained as a person ages, the “brain is . . . more susceptible to injury and it’s harder to heal from those injuries.” With regard to Leverette’s cervical MRI, Dr. Mahan noted an “acute,” as opposed to chronic, herniated disk pressing on Leverette’s spinal cord, indicating that the herniated disk had “occurred sometime recently” when the MRI was done. However, there was evidence of “degenerative change throughout her cervical spine . . . because that’s the normal aging process.”\n\nLeverette later amended her complaint to allege negligence, negligent training and supervision, and punitive damages. Prior to trial, the trial court granted summary judgment in favor of Walmart on Leverette’s claim for punitive damages. During the trial, Leverette also introduced the testimony of a life care planner, Sarah Lustig, admitted as an expert in nursing, rehabilitation care, and life care planning. Lustig testified that she formulates a plan that includes the charges for all of the care over the life expectancy of an individual for a particular injury. Lustig testified that she consulted with Leverette’s treating neurologist and collectively concluded that Leverette has “cognitive impairment and a need for 24/7 supervision.” The plan formulated by the planner is only in relation to the incident and thus “there[ is] nothing in the plan about cardiology, neph[rology], or pulmonology needs.” The life care plan totaled from $2,242,896 on the lower end to $3,492,716 on the higher end, considering Leverette’s medication, therapy, medical equipment, and 24-hour attendant care, relating only to “her cognitive impairment,” for the estimated remainder of Leverette’s life. The planner testified that if the plan had taken into account Leverette’s “other medical conditions . . . it would be a lot more expensive.”\n\nWalmart presented the testimony of three retained experts: (1) Dr. Matthews Gwynn, a neurologist, (2) Dr. Thomas Burns, a neuropsychologist, and (3) Audrey Cowart, a life care planner. Dr. Gwynn performed an independent medical evaluation of Leverette in November 2019, and reviewed Leverette’s medical records, including her April 2019 MRI, as well as video of the incident at Walmart.2 Based on the video, he concluded “there was very little, if any, trauma to her head from what I could tell.” With regard to Leverette’s MRI, Dr. Gwynn testified that Leverette’s brain looked “quite good” for her age with the only “abnormal” finding being “these white areas, that’s just signs of little bits of injury over the years from . . . not getting enough blood to that area[.]” He referred to it as “periventricular white matter disease” and “normal wear and tear.” He saw no evidence of any traumatic brain injury and concluded that Leverette had not sustained a concussion as a result of the Walmart incident.\n\nDr. Gwynn also performed cognitive testing on Leverette in November 2019, but concluded that it was not a “valid” test because Leverette scored so poorly and Dr. Gwynn did not “think she was giving full effort” or was “[u]nderperforming.” His overall impression was that Leverette was “embellishing her symptomology.” Dr. Burns, Walmart’s neuropsychologist, examined Leverette and testified that the results of the neurological testing he performed were not reliable because of “effort.” According to Dr. Burns, Leverette was unable to stay awake or pay attention so he was unable to reliably test and come to a conclusion regarding her cognitive impairment. Based on his review of Leverette’s medical records, he saw “a progression of a neurophysiological decline that was . . . present over a long period,” diagnosed Leverette with a cognitive disorder (not otherwise specified), and concluded that Leverette’s neurological decline relates to the progression of her medical conditions that existed regardless of the Walmart incident. When asked by Walmart’s counsel if he was saying that Leverette was “faking,” Dr. Burns answered that was not what he meant by “malingering,” but rather that “she’s ascribed most of her symptoms to what happened at Walmart when these symptoms . . . were there all along and have progressed.” Walmart’s life care planner concluded that the life care plan prepared by Lustig was “unreasonable and unnecessary,” and that Lustig’s conclusion that Leverette needed 24-hour care, particularly related to a head injury, was unsupported by the medical records. She also questioned the failure of Leverette’s expert to review Leverette’s medical records from prior to the incident. In closing, counsel for Leverette requested that the jury award her $3,679,200 for future pain and suffering and $1,916,968 for future medical care for a total sum of $5,596,168 in damages. In its closing, Walmart argued: The law provides another remedy that you might consider, which is worth considering also. If you believe that [the Walmart employee] shouldn’t have backed into [Leverette] and if you believe that he wasn’t careful and if you believe that the injury was slight and not severe trauma, you know, with great force sufficient to cause a concussion, that it was just a bump, if nothing else it was an insult, then the law provides for what’s called nominal damages. . . . It can be $10, it can be $100, it could be $500, but it should not be [$]3 million. They haven’t proven anything beyond nominal damages. . . . Nominal damages is the only thing they would be entitled to, if even that.\n\nThe trial court charged the jury on nominal damages as follows: Damages are given as pay or compensation for injury done. When one party is required to pay damages to another, the law seeks to ensure that the damages awar[d]ed are fair to both parties. If you believe from a preponderance of the evidence that the plaintiff is entitled to recover, then you should award to plaintiff such sums as you believe are reasonable and just in this case. If the injury is small or mitigating circumstances are strong, only nominal damages are given. What would be the proper amount of nominal damages is a question for you to decide under all the facts and circumstances of the case. Walmart requested that the verdict form include an option to award nominal damages. The trial court granted Walmart’s request over Leverette’s objection."
  },
  "outcome": {
   "amount": 1000000,
   "amountIsTheRequestedAmount": false,
   "date": "2024-05-10",
   "description": "The jury, given a nominal-damages option at Walmart's request, awarded the claimant $1,000,000 in nominal damages and nothing for future medical expenses or pain and suffering; the claimant had asked for $5,596,168. The trial court entered judgment on the verdict and denied Walmart's motion for new trial arguing the nominal award was excessive as a matter of law. The Court of Appeals of Georgia affirmed on May 10, 2024. No attorney's fees.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 1000000,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Injured Party / Claimant",
  "category": "premises-liability",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "williams-alaska-flint-hills-2023",
  "source": {
   "caseName": "Williams Alaska Petroleum, Inc. and The Williams Companies, Inc. v. State of Alaska; Flint Hills Resources, LLC; and Flint Hills Resources Alaska, LLC",
   "court": "Supreme Court of Alaska, on appeal from the Superior Court, Fourth Judicial District, Fairbanks",
   "docket": "S-17772 (Superior Court No. 4FA-14-01544 CI); Opinion No. 7658",
   "decided": "2023-05-26",
   "url": "https://storage.courtlistener.com/pdf/2023/05/26/williams_alaska_petroleum_inc._and_the_williams_companies_inc._v._state.pdf",
   "excerptNote": "documentText is verbatim from Parts II.A (Facts) and II.C (Proceedings), and from the parties' positions recited in Parts IV.A.2 and IV.B of the Alaska Supreme Court's opinion (slip opinion as published by the court; CourtListener mirror of the court's PDF). Removed: the Introduction; the statutory background; every sentence stating the superior court's liability, allocation (percentage) or award rulings, its contract-interpretation conclusions, or the Supreme Court's analysis and holdings; footnotes and citations; slip-opinion page headers. Where a footnote or page header fell inside a sentence, the sentence is kept with a line break at that point. One cost sentence from footnote 68 (the expected piped-water project cost and each payer's escrow payments to date) is kept because it states the costs incurred, not the allocation; the allocation sentence that follows it is removed. Split words from the PDF text layer (e.g. 'a nswer') were rejoined."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent Flint Hills Resources, the current owner and operator of the North Pole, Alaska refinery, on its crossclaims against the refinery's former owner and operator, Williams Alaska Petroleum and The Williams Companies, for statutory contribution under AS 46.03.822(j) and contractual indemnification for Flint Hills's costs of responding to offsite sulfolane groundwater contamination and onsite PFAS contamination. The claims are set for a bench trial in Alaska Superior Court in Fairbanks, alongside the State of Alaska's own claims against Williams.",
   "documentText": "Williams Alaska Petroleum, Inc. and The Williams Companies, Inc. (collectively Williams) owned and operated a North Pole refinery beginning in 1977. The refinery is on State-owned land which Williams leased. Williams began using sulfolane as a purifying solvent in its refining process in 1985. Sulfolane is highly soluble in water, meaning it can easily seep into groundwater when released onto the ground and into waterways, and it has low volatility, meaning it will not readily evaporate and instead remains in groundwater without attaching to the soil. Williams allowed sulfolane to migrate into the groundwater at the refinery through various means. Sulfolane was recycled to the extent feasible, but due to its high solubility some remained dissolved in water from refinery processes and was diverted into the wastewater system. Due to poor upkeep — with documented foot-wide tears in wastewater lagoon linings and some holes “repaired” by “pulling [the] liner together and punching with . . . pieces of lumber” — several wastewater storage units leaked sulfolane into the soil and groundwater. There were also direct sulfolane spills. Williams had multiple accidental releases of sulfolane-containing solutions, resulting in the release of\nhundreds of gallons of solution with sulfolane concentrations ranging from 66% to 100%. Sulfolane was detected in groundwater at the refinery in 1996 when Williams’s lab manager found sulfolane in groundwater samples in concentrations ranging from 250,000-2,700,000 parts per billion (ppb). Williams did not report its 1996 detection of sulfolane in groundwater to the Alaska Department of Environmental Conservation (DEC) until five years later in October 2001, when Williams’s consultant Shannon & Wilson prepared a report for Williams’s 2002 Site Characterization and Corrective Action Plan to address earlier environmental concerns about the refinery. By 2001 sulfolane was generally known in the scientific community to “exhibit[] low levels of toxicity,” but there otherwise was a dearth of available information about sulfolane, and DEC did not regulate it as a hazardous substance. DEC advised Williams about this uncertainty regarding sulfolane’s toxicity and cautioned Williams about sulfolane’s high mobility in groundwater. DEC instructed Williams to continue sampling the groundwater until it found the contamination source. DEC informed Williams it could reduce sampling frequency if its data were not changing and it could not find a source. Williams was not able to determine the specific source and stopped sampling altogether in July 2002. Williams also used aqueous foams as part of its fire response practices. These foams at the time contained per- and polyfluoralkyl substances, commonly called “PFAS.” The PFAS in the foams included a wide range of synthetic chemicals; among\nthe chemicals were perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA). Testing of the groundwater and soil at the refinery shows that, at the time of trial, they contained several PFAS, including PFOA and PFOS. On March 31, 2004 Williams sold the refinery to Flint Hills Resources, LLC and Flint Hills Resources Alaska, LLC (collectively Flint Hills). The parties to the sale signed an Asset Sale and Purchase Agreement they agreed would be governed by Texas law. It contained detailed provisions about the assumption or retention of liabilities related to all aspects of the refinery’s operations, including environmental liabilities. The parties agreed to hold harmless and indemnify each other for costs arising from their respective retained liabilities. Williams agreed to retain most environmental liabilities arising from its operations at the refinery, excepting specific matters listed on a Disclosure Schedule. In an effort to ensure more certainty about future indemnification obligations, the parties included a limit on indemnifiable damages with a specific Environmental Cap of $32 million. They further agreed that for claims “arising out of” the Purchase Agreement, the remedies listed in the Purchase Agreement would be exclusive, with certain exceptions including claims for equitable relief. Williams agreed to purchase a $50 million environmental liability insurance policy and paid $2.4 million in premiums. The Purchase Agreement also specified that Flint Hills was responsible for future sulfolane releases at the refinery beginning April 1, 2004. DEC informed Flint\nHills in October 2004 that it considered sulfolane a regulated contaminant and would be adopting cleanup standards. By April 2019 the sulfolane in the groundwater had laterally travelled, creating a plume approximately two miles wide, three and a half miles long, and over three hundred feet deep, and spreading offsite from the refinery. The plume then extended into the City of North Pole’s groundwater, and it is expected that sulfolane will continue to flow from the refinery site. Flint Hills and the State have taken a variety of steps to mitigate damages from the groundwater sulfolane plume, including providing alternative interim water, well-testing, community outreach, and drafting site characterization and corrective action plans. The most significant step has been expanding the City’s piped water system.\n\nIn March 2014 the State sued Williams and Flint Hills seeking declaratory\nrelief, injunctive relief, and damages resulting from discharges of oil and sulfolane. The State alleged that sulfolane is a hazardous substance as defined by Alaska’s environmental conservation statutes and administrative code. In its answer, Williams denied that its sulfolane releases were unlawful; asserted various legal, equitable, and constitutional defenses; and made counterclaims against the State. Williams claimed the State was a responsible landowner under AS 46.03.822(a) and could not “transfer its liability” to Williams because it had not regulated sulfolane during Williams’s tenure at the refinery. Williams also claimed that DEC was ordinarily and grossly negligent in supervising the refinery during Flint Hills’s tenure, allowing sulfolane to migrate off the refinery property, which in turn resulted in damages to Williams that it should be able to recover in contribution under AS 46.03.822(j). Flint Hills similarly denied liability under the Act and asserted legal, equitable, procedural, and constitutional defenses in its answer. Flint Hills claimed the State and Williams were responsible parties under AS 46.03.822(a), and Flint Hills counterclaimed against the State for contribution under AS 46.03.822(j). It also crossclaimed against Williams seeking contribution under AS 46.03.822(j) and indemnification under the terms of the Purchase Agreement, specific performance of the Purchase Agreement, and declaratory judgment regarding Flint Hills’s right to contribution and indemnification from Williams. Williams in turn asserted crossclaims against Flint Hills, claiming that Flint Hills had breached the Purchase Agreement, was unjustly enriched by improperly seeking coverage from Williams’s environmental insurance policy, and was ordinarily and grossly negligent in allowing sulfolane contamination. Williams sought damages for breach of contract, declaratory judgment that it was entitled to indemnification under the Purchase Agreement, contribution under AS 46.03.822(j), and application of the Purchase Agreement’s Environmental Cap to any potential liability against Williams.\n\nIn February 2017 Flint Hills reached a settlement with the State and the City, agreeing to partially fund an extension of piped water to affected residents. The superior court accordingly dismissed with prejudice the State’s and Flint Hills’s claims against each other.\n\nOther response costs included those incurred by Flint Hills to deliver bulk and bottled water in the interim and to drill new public wells after sulfolane was detected in the City’s source wells. The interim water deliveries were part of a project costing $27.67 million, and the new City source wells cost $4.39 million.\n\nThe court calculated expected cost for the piped water system — $72,228,154 — based on “payments from escrow to date by the State of $11,599,681 and $44,378,473 from Flint Hills; an additional $16.25 million is expected to be required to complete the project.”\n\nWilliams argues that the superior court erred by awarding the State response costs for the piped water system and new wells, claiming the piped water system was unnecessary, not cost-effective, and unreasonable. Williams also argues the superior court erred by awarding Flint Hills costs for bottled water to North Pole residents, contending that new wells for the City and “providing alternative water to residents on an interim basis” were unnecessary.\n\nWilliams further asserts that the piped water system’s cost was exorbitant rather than cost-effective because “[o]nly 86 private wells . . . in recent years” recorded measurements of at least 20 ppb of sulfolane. Williams therefore calculated the cost of the piped water amounted to “over $837,000 per affected well.” The State responds that the statute imposes strict liability for actual damages and response costs rather than for only the most cost-effective measures taken.\n\nFlint Hills sought indemnification from Williams under the terms of the Purchase Agreement for the remediation and litigation costs associated with the offsite sulfolane.\n\nWilliams disputes the superior court’s interpretation of the Purchase Agreement. It first argues that Flint Hills assumed responsibility for the offsite sulfolane. Williams also contends that the Purchase Agreement’s indemnification provision is the sole remedy available to Flint Hills and therefore the superior court erred by allowing statutory contribution. Williams also argues that any award against it — whether through indemnity or contribution — is subject to the Environmental Cap negotiated in the Purchase Agreement.\n\nArticle X cross-references Section 10.2(a)(iv) of the “Disclosure Schedule” appended to the Purchase Agreement. That section of the Disclosure Schedule, entitled “Known Environmental Matters,” begins with a sentence fragment stating, “Any and all costs of clean-up, monitoring, corrective actions and compliance\nwith regulations incurred after the Effective Time with respect to contamination specifically identified in the referenced figures, tables and text described below.” The following sentence adds detail, stating that “Buyer has agreed to assume full responsibility for all existing, known contamination at the Real Property specifically identified in the referenced figures, tables and text described below.” The Disclosure Schedule also provides that Buyer understands and acknowledges that the levels of Hazardous Materials measured in monitoring wells and contained in the figures, tables, and text below will vary over time, and that Buyer is responsible for such normal variations, as well as any changes in such contamination resulting from Buyer’s actions or omissions after the Effective Time. . . . [T]he Buyer further understands that the data is representative of site conditions and can be used to support reasonable conclusions about present contaminant concentrations at the locations sampled and contaminant contours outside those locations. Listed in the Disclosure Schedule is a table entitled “Sulfolane Data (July 2001 ­ September 2001) for North Pole Refinery.” The table indicates varying concentrations of sulfolane were detected at monitoring wells located on the refinery property, including near the property boundaries.\n\nIn an effort to ensure more certainty regarding the extent of future indemnification obligations, the parties included a damages cap for indemnification, with a specific Environmental Cap of $32 million.\n\nRepresentatives of both parties described an “our watch/your watch” approach where each party would retain responsibility for issues caused during their operations, with the very narrow exceptions enumerated in the Disclosure Schedule.\n\nFlint Hills Resources’ Alaska President Allen Lasater testified that, based on his understanding of the parties’ intent at the time of contracting, Flint Hills did not assume responsibility for offsite contamination. He stated that there was no offsite sulfolane contamination then “known” and thus it was not included in the Disclosure Schedule. Lasater essentially equated unknown to undisclosed, and therefore liability for those unknowns “remained with Williams.” He explained that this was a logical intent because Flint Hills needed to know the extent of pollution in order to agree to continue running the refinery’s pollution remediation system consistent with DEC’s compliance orders.\n\nWilliams representative Randy Newcomer qualified references to known conditions as “known conditions which were primarily onsite.” (Emphasis added.) He stated that Flint Hills took responsibility for “known cleanup” of “known contaminants” as described in the Disclosure Schedule as of the Effective Date, after which Flint Hills was responsible for additional pollution occurring on- and offsite during their ownership. Williams thus remained responsible for the unknown conditions offsite “caused . . . by Williams during its ownership.”\n\nWilliams argues that the court misconstrued the plain language of the Agreement when it concluded that Flint Hills had not assumed liability for offsite sulfolane. First, Williams claims the court incorrectly concluded that the contract distinguished onsite/offsite sulfolane and that Section 10.2(a)(iv)(A) excluded offsite matters. Williams argues that subsection (A) in fact applies to both onsite and offsite conditions, because it refers to conditions “at, on or under or arising, emanating, or flowing from any of the Assets or from the property.” It argues that “arising, emanating, or flowing from” would be superfluous if it related solely to onsite conditions, which\nwould have been properly encapsulated by “at, on or under.” Similarly, Williams points to the broad definition of “Environmental Condition” in the contract — “any condition existing on, at or originating from, each property” — to support its contention that a disclosed substance might migrate offsite yet remain part of Flint Hills’s assumed responsibilities. Second, Williams argues that the superior court erred by relying on extrinsic evidence to assist with the interpretation of the Purchase Agreement. Williams claims that reference to extrinsic evidence violated Texas contract law governing the agreement.\n\nWilliams further argues that statutory contribution is not available to Flint Hills because the Purchase Agreement made indemnification the exclusive remedy for environmental damages claims. Williams argues that by failing to properly construe the exclusive remedies provision in Section 10.5, the superior court “allowed Flint Hills to achieve an end-run around” the indemnity bar. Williams asserts that, because money damages are not equitable relief allowable under the Purchase Agreement and because we characterized contribution damages under AS 46.03.822(j) as a legal claim in Flint Hills I, contribution should be barred by the Purchase Agreement."
  },
  "outcome": {
   "amount": 52500000,
   "amountIsTheRequestedAmount": false,
   "date": "2023-05-26",
   "description": "After a 16-day bench trial the superior court held Flint Hills barred from contractual indemnity (because it had contributed to the sulfolane pollution), which made the $32 million Environmental Cap inapplicable, but allowed statutory contribution under AS 46.03.822(j). Allocating 75% of offsite sulfolane response costs to Williams and 25% to Flint Hills (none to the State), it ordered Williams to contribute $52.5 million to Flint Hills's response costs ($51.4 million for offsite sulfolane and $1.17 million for onsite PFAS), plus prejudgment interest, and 75% of future piped-water and offsite remediation costs, and to indemnify Flint Hills for onsite PFAS-related future claims. The Alaska Supreme Court affirmed the contribution award and allocation on May 26, 2023, remanding only the separate injunctive relief for more specificity. The outcome amount is the stated $52.5 million contribution figure, excluding prejudgment interest and the open-ended future-cost share; the State's separate award against Williams is not included.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 52500000,
   "finalNote": "Contribution award to Flint Hills affirmed; only the injunction was remanded for more specificity."
  },
  "expectedRole": "Property Owner / PRP",
  "category": "environmental",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "exxon-mobil-v-united-states-2020",
  "source": {
   "caseName": "Exxon Mobil Corporation v. United States of America (consolidated Nos. H-10-2386 and H-11-1814)",
   "court": "United States District Court for the Southern District of Texas, Houston Division (bench trial; amended findings of fact and conclusions of law)",
   "docket": "4:10-cv-02386 and 4:11-cv-01814 (Docket Entry No. 350)",
   "decided": "2020-09-16",
   "url": "https://www.govinfo.gov/content/pkg/USCOURTS-txsd-4_10-cv-02386/pdf/USCOURTS-txsd-4_10-cv-02386-7.pdf",
   "excerptNote": "documentText is verbatim from the court's own opinion as published on govinfo.gov: Part I (introduction, the $77 million past-cost claim, the 2015 and 2018 pretrial rulings, the Phase 3 stipulations), and the parts of Part II that recite the parties' competing positions (war versus commercial products, each side's proposed allocation percentages, the government's nexus argument, and the insurance-offset dispute including Exxon's statement of its claimed past costs). Removed: the opening summary of the court's allocation and total award; every sentence stating a finding of fact, credibility finding, the court's allocation analysis and percentages, cost figures stated only in the court's allocation, and its conclusions of law; witness lists; footnotes and page headers (a line break marks where a page header fell inside a sentence)."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent ExxonMobil, owner of the Baytown, Texas and Baton Rouge, Louisiana refineries and nearby chemical plants, in its consolidated CERCLA cost-recovery and contribution suits against the United States for the government's share of past response costs to clean up wastes from World War II and Korean War era wartime production. Liability of both parties and the allocation method were decided on summary judgment; allocation of past costs and the insurance-offset question are set for a bench trial in the Southern District of Texas.",
   "documentText": "ExxonMobil is a multinational oil and gas corporation that owns numerous chemical plants and refineries, including one in Baytown, Texas and another in Baton Rouge, Louisiana. These refineries date back to the early 20th century, when they were constructed and operated by predecessors to ExxonMobil. In the 1940s, the Baytown and Baton Rouge refineries converted with astonishing speed into aviation gas and synthetic rubber production sites. The conversion was important to the military victory over Japan and Germany. Both refineries operated under wartime contracts with the United States. In both, military needs were given priority over environmental consequences. Those consequences are the basis of these lawsuits.\n\nIn 2010 and 2011, Exxon sued the United States government under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. (“CERCLA”), seeking reimbursement for a percentage of the costs it paid, and will continue to pay, to remediate environmental damage at the Baytown and Baton Rouge refineries and nearby chemical plants under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”). The statutes impose environmental standards and allow past owners and operators of facilities where hazardous substances are located to be liable for the costs needed to clean them up and prevent further harm.\n\nTwo sets of general issues are presented: what amount of the environmental wastes needing remediation are attributable to World War II (and, to a lesser extent, the Korean War); and what\npercentages of that amount should Exxon and the government pay as remediation or response costs? Both sets of questions must be answered for each refinery, for the war years and beyond.\n\nExxon alleges that, through December 2014, it has incurred approximately $77 million in past response costs attributable to the wartime-related contamination, and that it will incur significant additional future costs. (See Docket Entry No. 261 at 6–10). Exxon’s claims to recover part of the costs at the Baytown facility are governed by § 113(f), 42 U.S.C. § 9613(f). Its claims to recover part of the costs at the Baton Rouge facility are governed by § 107(a), 42 U.S.C. § 9607(a). In 2009, Exxon filed two contract actions against the government in the United States Court of Federal Claims, seeking recovery for avgas-related environmental cleanup costs based on a reimbursement clause in the World War II avgas supply contracts between Exxon and the government. The clauses required the government to reimburse Exxon for charges incurred “by reason of” the avgas production. See Exxon Mobil Corp. v. United States, 101 Fed. Cl. 576 (2011). The contract case in the Court of Federal Claims is stayed, pending resolution of the issues here.\n\nThis case was litigated in three phases. The first addressed whether only Exxon or the government, or both, were responsible for the contamination and should pay the cleanup costs. Each party pointed the liability finger at the other. Neither wholly succeeded or failed.\n\nIn 2015, the court ruled on the parties’ cross-motions for partial summary judgment, holding that: • the three-year statute of limitations under § 113(g)(2), 42 U.S.C. § 9613(g)(2), applies to Exxon’s claims at Baytown; • § 113(f)(3)(B)’s contribution provision is Exxon’s exclusive remedy to seek cleanup costs incurred in response to administrative settlements with the State of Texas; • Exxon’s agreed orders with the State of Texas are “administrative settlements” under § 113(f); • the refinery and chemical plant at each site are a single “facility” under CERCLA; • Exxon and the government were CERCLA owners and operators of the chemical plants at both facilities; • the government was not a CERCLA owner and operator of either refinery; and\n• Exxon was entitled to a declaratory judgment that “the United States is liable for its equitable share of past and future cleanup costs incurred at the Baytown and Baton Rouge sites.”\n\nThese determinations meant that both Exxon and the government bear a share of the liability for the cleanup costs at the Baytown and Baton Rouge facilities. In Phase 2, the court determined how to allocate to each party its share of the remediation costs at each site. In 2018, the court ruled on the parties’ cross-motions for partial summary judgment, holding that: • Exxon’s cleanup costs at the two Baytown Facility Operations Areas were “necessary costs of response” eligible for CERCLA recovery; • Exxon’s response actions at the five Baytown units and at the three Baton Rouge units were appropriately characterized as a single “removal” action at each facility, which would not be barred by the statute of limitations in 42 U.S.C. § 9613(g); • Exxon “substantially complied” with the National Contingency Plan for three of the Baytown units and two of the Baton Rouge units; • a deduction of the insurance-settlement proceeds Exxon received in a different case is appropriate if needed to prevent double recovery; • the “production-based” analysis is the appropriate equitable allocation methodology to use in this case; and • Exxon is entitled to a declaratory judgment that it is entitled to recover future cleanup costs associated with the units at which Exxon has already incurred costs.\n\nPhase 3 required a bench trial to resolve the factual disputes and conflicting inferences, and to fix the relative shares of responsibility and the amounts of past costs and the share of future costs that each party must pay. The bench trial was set to begin in February 2019, but the court granted an extension of time for the parties to pursue a mediated settlement of these and other contaminated sites. In late 2019, the parties told the court that they had not resolved the case and needed to proceed with the bench trial. The parties helpfully stipulated to the remaining cost-accounting issues. (See Docket Entry No. 261 at 15–16). The parties also stipulated that the “run-rate” costs Exxon estimated for each site for 2015 to 2019 should be treated as future costs and not included in the court’s quantification of past response costs. (Id. at 16). Finally, the parties reached a partial stipulation as to the size of the offset if the court found an insurance offset appropriate. (Id. at 16-17).\n\nExxon argued in the bench trial that its predecessors were effectively “compelled” to enter into these avgas supply contracts and had limited, if any, authority to negotiate terms. The government responded that private industry voluntarily cooperated with the federal government in order to simultaneously profit from, and support, the defense effort.\n\nThe parties dispute how to characterize the refineries’ output during the period of federal involvement. The parties agree that high-octane aviation gasoline was produced solely for military use and should be considered a “war product.” But the parties dispute whether other products made during the period of federal involvement should also be considered “war products,” or whether they are more accurately considered “commercial products.” Exxon’s argument that all of its wartime production should be characterized as war materials has two parts. First, Exxon argues that due to the fundamentals of petroleum refining, the refineries could not make avgas without producing the slate of related products. Following Exxon’s reasoning, these other products are necessarily war products because they were produced in order to fulfill the government’s orders for avgas. Second, Exxon argues that while these other products had commercial uses as well, Exxon sold them to the military for such essential wartime uses as fuel for military cars and trucks and for weapons. The government responds that because it did not operate the refineries, as the court held in the Phase 1 opinion, it should not be allocated remediation costs associated with hazardous wastes generated by producing products that were only incidental to producing avgas but not specifically ordered as a wartime priority. The government argues that Exxon could have sold, and did sell, these products, and presumably profited from them, on the commercial market, including during\nthe war years. The government admits that “war products” includes more than avgas. The government properly accepts responsibility for the remediation costs sufficiently linked to wartime production of toluene, butadiene, Navy fuels, xylenes, and military lubricants, as additional war products. (Docket Entry No. 340-1 at ¶ 214). But the government argues that these war products made up only between 25 percent to 40 percent of the refineries’ crude runs. (See id. at ¶ 218). Accordingly, the government argues, it should be responsible only for remediation costs associated with hazardous wastes remaining from 25 percent to 40 percent of the refineries’ crude runs during the periods of federal involvement.\n\nThe parties proposed their own equitable divisions, based on the factors the court explained in its 2018 summary judgment opinion it would consider at this phase: the “Gore” factors; the “Torres” factors; and five factors of the court’s choosing.\n\nExxon proposes that the government be allocated a 40 percent share of the response costs for both avgas and other war productions assigned to the periods of federal involvement at both Baytown and Baton Rouge. (Docket Entry No. 339 at ¶¶ 718, 719, 763, 764). Mr. White proposed 40 percent based on his “benchmarking” exercise, in which he compared the facts here to the facts in other CERCLA decisions.16 The 40 percent figure represents a downward departure from Exxon’s initial 60 percent proposal to reflect the court’s 2015 holding that limited the government’s liability under CERCLA. (P-761 at 45).\n\nThe results of Mr. White’s allocation are as follows: At Baytown, the government would be liable under CERCLA for an allocated share of 29.67 percent for past response costs incurred at the refinery and 36.54 percent for past response costs incurred at the Baytown Ordnance Works and Tankfarm 3000 Area.\n\nAt Baton Rouge, the government would be liable under CERCLA for an allocated share of 19.4 percent for past response costs incurred at the refinery.\n\nFor the bench trial, the government used Mr. White’s production-based approach that the court had earlier found to be the more reliable and credible allocation method. See Exxon II, 335 F. Supp. 3d at 941. The government asks the court to make changes to that method to adjust for what the government sees as the more reliable and credible record evidence supporting the amounts each party must pay. The government’s approach deviates most from Exxon’s at Step One and Step Two of the allocation method. At Step Three, the government’s proposal is relatively close to Exxon’s proposal.\n\nThe government proposes that it receive a 100 percent allocation of remediation costs for avgas; 40 percent for other war products; and 67 percent for the Baytown Ordnance Works. (See Docket Entry No. 340-1 at ¶¶ 288–90). The government states that Exxon “agrees” with this 100 percent allocation for avgas contamination during the years of federal involvement.\n\nAt the Baytown refinery during World War II, Mr. Low allocates 14 percent of costs to avgas, at a 100 percent government share, 30 percent to other war products, at a 40 percent government share, and 56 percent to civilian products, at a 0 percent government share. (Docket Entry No. 326 at 167; see also D-3031 at 106, 109). At the Baton Rouge refinery, during World War II, Mr. Low allocated 19 percent to avgas, at a 100 percent government share, 30 percent to other war products, at a 40 percent government share, and 51 percent to civilian products, at a 0 percent government share. (Docket Entry No. 326 at 167; see also D-3031 at 105). Mr. Low reduces the percentage of costs allocated to avgas to reflect the government’s theory that the refineries used avgas imports that generated less waste. (D-3031 at 109).\n\nAccounting for the changes the government proposed in the earlier allocation steps in its proposal for the impact of the equitable factors, the government proposes the following allocation of its liability for the remediation costs at issue: for the Baytown refinery, 2.36 percent; for the Baytown Ordnance Works, 1.86 percent; and for the Baton Rouge refinery, 0.46 percent.\n\nThe government argues that because Exxon has not shown the necessary nexus between government action and the remediation costs, those costs should not be allocated to the government, but to Exxon.\n\nIn the 1990s, Exxon sued its insurers to recover its environmental cleanup costs at hundreds of thousands of sites across the United States. In the North American Coverage Case, Exxon argued that its insurance policies covered environmental cleanup costs at numerous refineries,\nincluding at the Baytown and Baton Rouge facilities. Exxon eventually settled that case for approximately $269 million. (Docket Entry No. 338 at 2). Exxon and the government dispute the effect of this settlement payment on Exxon’s CERCLA contribution claim against the government. The government’s position in this litigation is that Exxon should offset the Coverage Case settlement money it received for the two refineries on a dollar-for-dollar basis. Exxon argued that the government’s insurance offset claim should be dismissed on two grounds: (1) Exxon will not get a “double recovery” by retaining both the Coverage Case settlement payment and receiving the amounts allocated to the government in these CERCLA cases; and (2) the collateral source rule separately bars the government’s insurance offset claim. (Docket Entry No. 338). The government’s argument at this stage is that the court has already determined that a settlement offset is appropriate, and the only remaining issue is whether attorneys’ fees should be deducted from that offset. To that question, the government says “no”; Exxon says “yes.” (Docket Entry No. 340-2 at 4).\n\nExxon admitted during Phase 2 that no portion of its insurance settlement was allocated to the reimbursement of litigation fees. (See Docket Entry No. 209 at 28). But Exxon argues that it will not obtain a “double recovery” from the offset “unless the Court allocates to the United States more than 94 percent (that is, more than $48.1 million) of Exxon’s claimed past costs of approximately $51.0 million at Baytown, or more than 87 percent (more than $22.7 million) of\nExxon’s claimed past costs of $26.0 million at Baton Rouge.” (Docket Entry No. 261 at 12 n.1)."
  },
  "outcome": {
   "amount": 20328670,
   "amountIsTheRequestedAmount": false,
   "date": "2020-09-16",
   "description": "After a 14-day bench trial the court allocated to the United States 24.67% of past response costs at the Baytown refinery ($45,567,403 in stipulated past costs), 36.54% at the Baytown Ordnance Works/Tankfarm 3000 Area ($5,481,340) and 14.4% at the Baton Rouge refinery ($26,046,130), compared with Exxon's proposed 29.67%, 36.54% and 19.4% and the government's proposed 2.36%, 1.86% and 0.46%. It held no offset for Exxon's roughly $269 million insurance settlement was warranted because there was no double recovery, and declared the same shares apply to future costs. The total damage award in Exxon's favor was $20,328,670, which is $16,994,815 in allocated past costs plus $3,333,855 in accrued prejudgment interest. The outcome amount is that stated total, interest included.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "none",
   "finalAmount": null,
   "finalNote": "Trial judgment; appeal status could not be verified, so the final figure is pending."
  },
  "expectedRole": "Property Owner / PRP",
  "category": "environmental",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "asarco-v-atlantic-richfield-2020",
  "source": {
   "caseName": "ASARCO LLC v. Atlantic Richfield Company, LLC",
   "court": "United States Court of Appeals for the Ninth Circuit, on appeal from the United States District Court for the District of Montana (bench trial)",
   "docket": "No. 18-35934 (D.C. No. 6:12-cv-00053-DLC)",
   "decided": "2020-09-14",
   "url": "https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/14/18-35934.pdf",
   "excerptNote": "documentText is verbatim from the Ninth Circuit's published opinion (the court's PDF; text taken from the CourtListener mirror of the same file): the opening two sentences, Part I.A-B (site operations, EPA involvement, the settlement payment and its components, the competing remediation-cost estimates), Part I.C through the 2017 remand, the parties' positions on 'incurred' costs recited in Part II.A, and the parties' experts' allocation positions from Part II.B. Removed: the summary; every sentence stating the district court's findings, allocation percentage, award or additional premium; the Ninth Circuit's analysis and holdings; page headers; footnotes other than footnotes 1 and 2 (kept as separate lines). Where a footnote fell inside a sentence the sentence is kept with a line break at that point."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent ASARCO LLC, former owner and operator of the East Helena, Montana lead smelter Superfund site, in its CERCLA contribution action against Atlantic Richfield Company, successor to the operator of a zinc fuming plant on a leased part of the site, to recover a share of the amount ASARCO paid under its 2009 consent decree for the site cleanup. The case is set for a bench trial in the District of Montana.",
   "documentText": "In June 2009, ASARCO LLC (“Asarco”) agreed to settle with the government and enter into a consent decree to clean up environmental contamination at several sites, including a Superfund Site in East Helena, Montana (the “Site”). Asarco then brought a contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601–9675, against Atlantic Richfield Company, LLC (“Atlantic Richfield”).\n\nAsarco and its predecessors owned and operated a lead smelting facility at the Site from 1888 to 2001. Asarco’s lead smelting facility was the largest operation at the Site. This operation recovered lead and other metals by smelting a variety of foreign and domestic concentrates, ores, fluxes, and other non-ferrous, metalbearing materials and byproducts. Those materials contained arsenic concentrations as high as 190,000 parts per million (“ppm”). The smelting operation produced slag as a waste product, which contained small residual quantities of metals and arsenic. It is undisputed that Asarco “released significant amounts of arsenic into the environment” from its smelting facility. Atlantic Richfield is the successor in interest to Anaconda, which leased a portion of the Site from Asarco to construct and operate a zinc fuming plant. Using a blast furnace fueled with coal, Anaconda reprocessed slag that it purchased from Asarco to recover zinc. Anaconda used and produced several arsenic-bearing materials in its fuming operation, albeit with a lower arsenic concentration than Asarco’s primary materials. Anaconda operated the zinc fuming plant from 1927 to 1972, at which point it sold the plant to Asarco. Asarco then operated the zinc fuming plant for another decade.\n\nIn 1984, the Environmental Protection Agency (“EPA”) added the Site to the CERCLA National Priorities List, targeting it for environmental remediation. The primary environmental concern at the Site was arsenic contamination of the groundwater. In the years that followed, Asarco entered into a series of agreements with the EPA to begin the process of remediation. In 1990, Asarco and the EPA finalized a settlement agreement and consent decree in CERCLA litigation concerning the contamination of the process ponds at the Site. Pursuant to the consent decree, Asarco agreed to undertake a cleanup of the process ponds, which it substantially completed by 1997. In 1998, Asarco and the EPA entered into another settlement agreement and consent decree, this time resolving claims brought by the EPA under the Resource Conservation and Recovery Act and the Clean Water Act. The settlement did not raise any claims under CERCLA. On August 9, 2005, Asarco filed a Chapter 11 bankruptcy petition. In connection with the bankruptcy proceedings, the United States, the State of Montana, and the State of Montana Department of Environmental Quality all filed proofs of claim for Asarco’s projected liability under CERCLA. Asarco, the United States, and the State of Montana reached two complementary settlement agreements and consent decrees in February and June 2009, resolving Asarco’s outstanding environmental liabilities at several Montana sites, including the Site at issue in this case. The June 2009 consent decree established a custodial trust for the affected sites, and the Montana Environmental Trust Group (“METG”) was appointed as the custodial trustee for the East Helena Site. The June 2009 consent decree also designated the EPA as the lead agency for the Site, placing it in charge of selecting, approving, and authorizing all work performed and funds expended by METG.\n\nPursuant to the June 2009 consent decree, Asarco paid approximately $111.4 million1 for cleanup of the East Helena Site—accounting for comprehensive damage done to the Site by all responsible parties. That sum included: (a) $99.294 million into the East Helena Custodial Trust\nCleanup Account for a groundwater remedy; (b) $6,403,743 toward the establishment of the Custodial Trust and the funding of the Custodial Administrative Account to be used for trust administration expenses; (c) $706,000 to the U.S. Department of the Interior for natural resource restoration and future oversight costs for the Site; and (d) $5 million to the State of Montana for compensatory natural resource damages at the Site.\n\nIn total, Asarco paid $1.8 billion to settle environmental claims related to hazardous waste in the bankruptcy proceedings.\n\nMETG has begun its remediation work at the Site. So far, it has fully implemented three interim measures to curb the spread of contaminants and further environmental degradation at the Site. METG also has implemented institutional controls for the Site and the surrounding areas, designed to prevent property owners from using their domestic water wells to avoid contact with contaminated groundwater. METG proposes one additional future project: capping the portion of the slag pile at the Site that consists of unfumed slag. METG has not instated and does not plan to install a pump-and-treat system. As of the most recent accounting available, METG had spent a little less than half of the trust funds at its disposal, leaving it with approximately $50 million for further remediation efforts. Atlantic Richfield’s expert estimated the ongoing costs for operations and maintenance at $9.2 million, and METG estimated the cost of covering the unfumed slag at $3.7 million. Adding those sums to the dollar amount already expended by METG, the total cleanup cost for the Site would approximate $61.4 million. Asarco contends that Atlantic Richfield’s expert vastly understates\nhow costly the cleanup would be.\n\nThis figure was based on estimates for a pump-and-treat system recommended by the State of Montana’s experts, William Bucher and Ann Maest.\n\nAsarco’s expert opined that METG’s proposed remedies would be insufficient to address the groundwater contamination and that more substantial remediation work would be necessary.\n\nIn 2012, Asarco brought this contribution action against Atlantic Richfield under CERCLA §§ 107 and 113. The district court granted summary judgment in favor of Atlantic Richfield, finding the action barred by the statute of limitations. Asarco appealed, and we concluded that Asarco’s contribution claim was, in fact, timely. See Asarco LLC v. Atlantic Richfield Co., 866 F.3d 1108 (9th Cir. 2017). We vacated the district court’s summary judgment order and remanded for further proceedings before the trial judge. Id.\n\nAtlantic Richfield contends that those funds not yet spent or earmarked for specific, imminent work cannot qualify as costs “incurred.” It relies on cases that prohibit recovery under CERCLA for future response costs or the award of speculative damages unmoored to concrete expenses. See Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015, 1021– 22 (9th Cir. 1993); In re Dant & Russell, Inc., 951 F.2d 246, 249–50 (9th Cir. 1991). Atlantic Richfield asserts that METG no longer expects to implement the costly pump-and- treat remedy, instead planning to carry out cheaper remedial actions that would leave a large portion of the settlement funds untouched. It also cites to a reversion provision in the settlement agreement, whereby unused settlement funds would be redirected to remediate other sites for which Atlantic Richfield has no liability. Asarco responds that the costs for which it seeks contribution were actually “incurred.” It argues that the entire sum paid in settlement, $111.4 million, was intended to fund the environmental cleanup of the Site, as evidenced by the fact that the reversion provision does not allow the return of any funds to Asarco’s hands. Based on its irrevocable payment, Asarco says it “incurred” those response costs within the meaning of the statute. Asarco attempts to distinguish the cases cited by Atlantic Richfield, noting that they occurred in different contexts and lacked the same type of firm monetary commitment that Asarco undertook here.\n\nAnd Asarco points to cases from other\ncircuits allowing recovery of future costs, arguing that precluding recovery for such costs could undermine CERCLA’s policy objective of incentivizing settlements and early, accountable cleanup.\n\nAsarco’s expert proposed three alternative liability allocation strategies, which apportioned Atlantic Richfield’s responsibility at twenty-five percent to forty-one percent depending on the method. Atlantic Richfield’s expert focused on challenging Atlantic Richfield’s liability altogether and opined that Atlantic Richfield should have zero responsibility for the Site cleanup."
  },
  "outcome": {
   "amount": 28850936,
   "amountIsTheRequestedAmount": false,
   "date": "2020-09-14",
   "description": "After an eight-day bench trial the district court found ASARCO had incurred $111,403,743 in necessary response costs (the full consent-decree payment) and held Atlantic Richfield liable for 25 percent of them, $27,850,936, adopting the most conservative of ASARCO's expert's allocation strategies (25 to 41 percent) and rejecting Atlantic Richfield's zero allocation; it added a separate $1 million award for Atlantic Richfield's non-cooperation and misrepresentations, so the stated awards total $28,850,936. The Ninth Circuit affirmed the 25 percent allocation (and the unchallenged $1 million award) but vacated the finding that the whole $111.4 million was recoverable now, because about $50 million of trust funds had not been and might never be spent, and remanded to determine which costs were actually incurred. Atlantic Richfield had argued recoverable costs should be limited to about $61.4 million.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "vacated-in-part",
   "finalAmount": null,
   "finalNote": "Allocation affirmed; cost base vacated and remanded, so no final figure (25 percent of the remand cost base plus the $1 million award)."
  },
  "expectedRole": "Property Owner / PRP",
  "category": "environmental",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "omega-healthcare-securities-2019",
  "source": {
   "caseName": "In re Omega Healthcare Investors, Inc. Securities Litigation",
   "court": "U.S. District Court for the Southern District of New York (dismissal reversed and remanded by the Second Circuit, Setzer v. Omega Healthcare Investors, Inc., 968 F.3d 204 (2d Cir. 2020))",
   "docket": "1:17-cv-08983-NRB",
   "decided": "2019-03-25",
   "url": "https://storage.courtlistener.com/recap/gov.uscourts.nysd.484014/gov.uscourts.nysd.484014.62.0.pdf",
   "outcomeUrl": "https://storage.courtlistener.com/recap/gov.uscourts.nysd.484014/gov.uscourts.nysd.484014.167.0.pdf",
   "excerptNote": "documentText is verbatim from the court's March 25, 2019 Memorandum and Order on the first motion to dismiss (ECF No. 62): the opening paragraph (minus its final sentence stating the ruling), the entire Background (Parts I-IV), and the sentences in the Discussion that summarize plaintiffs' and defendants' arguments on falsity, materiality and scienter. Removed: the procedural history, the pleading standards, and every sentence stating the court's analysis or conclusions. Footnote text was moved to the end of the source file and page numbers were stripped; inline footnote reference numerals (e.g. 'EBITDAR3') remain as extracted. The settlement amount comes from the Order and Final Judgment (ECF No. 167), not from the excerpt."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lead plaintiff and the putative class of investors who bought shares of Omega Healthcare Investors, Inc., a healthcare-facility REIT, in a federal securities-fraud class action under Sections 10(b) and 20(a) of the Exchange Act pending in the Southern District of New York. The claims concern Omega's disclosures about a major skilled-nursing operator-tenant that stopped paying rent; the case is proceeding toward class certification and trial. The facts below are from the court's opinion on the motion to dismiss.",
   "documentText": "Lead plaintiff Royce Setzer brings this class action under § § 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 against Omega Healthcare Investors, Inc. (“Omega”) and the company’s chief executives (“individual defendants,” and, together with Omega, “defendants”), on behalf of a putative class of investors who purchased or otherwise acquired Omega’s securities between May 3, 2017 and October 31, 2017, both dates inclusive (“class period”). Specifically, plaintiffs bring claims under: (1) § 10(b) of the Exchange Act and Rule 10b-5 against all defendants; and (2) § 20(a) of the Exchange Act against the individual defendants. Defendants have moved to dismiss the Consolidated Amended Class Action Complaint (“Amended Complaint” or “AC”) under Federal Rule of Civil Procedure 12(b)(6) and the Private Securities Litigation Reform Act (“PSLRA”) for failure to state a claim.\n\nOmega, a publically traded Maryland corporation, AC ¶ 15, is a self-administered real estate investment trust (“REIT”) that invests in healthcare facilities, such as skilled nursing facilities and assisted living facilities, id. ¶ 2. Omega provides lease or mortgage financing to these healthcare facilities and earns money for its stockholders largely by collecting rent and/or mortgage payments from the operators of the facilities. Id. ¶ 2. At all relevant times, defendant C. Taylor Pickett (“Pickett”) served as Omega’s chief executive officer (“CEO”), id. ¶ 16; defendant Robert O. Stephenson (“Stephenson”) as the chief financial officer (“CFO”), id. ¶ 19; and defendant Daniel J. Booth (“Booth”) as the chief operating officer (“COO”), id. ¶ 22. Plaintiffs are individuals who purchased or otherwise acquired Omega’s securities during the class period. Id. ¶ 1. II. Omega’s First Quarter 2017 Communications and Activities Non-party Orianna Health Systems (“Orianna”)2 was Omega’s second largest operator as of December 31, 2016. Id. ¶ 4. In 2016 and 2017, Orianna faced operational pressures due to a variety of factors. Id. Because of these pressures, Orianna failed to pay rent to Omega during the first quarter of 2017, reaching 45 days past-due by the end of the quarter. On May 2, after the end of the first quarter but prior to the earnings press release and conference call for that quarter, Omega provided an $18.8 million working capital loan to Orianna. Id. ¶ 36. The loan was not publicly disclosed. Id. The next day, May 3, Omega issued a press release that included annual adjusted funds from operations (“FFO”) estimates of $3.40 to $3.44 per diluted share. Id. ¶ 40. On May 4, Omega held a conference call to discuss earnings and address portfolio issues of increased labor costs and decreased lengths of stay in Omega-owned properties. Id. ¶¶ 34-35. On that call, defendant Booth stated that “[o]ne private top 10 operator, of note, however, felt the performance pressure more than most.” Id. And that “[t]his was exacerbated in 2016 by complete replacement of senior management early in the year.” Id. ¶ 35. Omega also disclosed that the operator had dipped below 1x EBITDAR3 for the trailing 12 months. Id. The complaint alleges that this operator was Orianna. Id. ¶ 35. Booth further disclosed: “Omega embarked on an effort to sell off the company’s northwest region, which consisted of 7 facilities. ... We anticipate the sale of all 7 facilities in that region to be completed by the second quarter of 2017, with 3 facilities having already been sold.” Id. ¶¶ 34- 35. In response to an analyst who questioned why Omega’s guidance did not reflect that the tenant [i.e., Orianna] was no longer paying rent, defendant Pickett stated “...at 45 days past due, to start fiddling around with guidance, just doesn’t make any sense, we feel pretty comfortable that they’re going to come back with coverages at their previous level... .” Id. ¶ 44. Following the earnings call, on May 5, Omega filed a 10-Q report for the quarter ended on March 31, 2017, which disclosed that it had executed sales agreements to sell Orianna’s seven northwest facilities to new operators. Id. ¶ 33. The 10-Q further stated “[t]here have been no material changes to our risk factors as previously disclosed ... in Part 1 of our Annual Report on Form 10-K4 for the fiscal year ended December 31, 2016.” Id. ¶ 51. III. Omega’s Second Quarter 2017 Communications and Activities Orianna reached 90 days past-due on rent during the second quarter of 2017. At the end of the quarter, on July 26, 2017, Omega issued a press release that revised Omega’s 2017 guidance on FFO upwards to between $3.42 and $3.44 per common share. Id. ¶ 59. The day after the press release, Omega held a conference call to discuss earnings. Id. ¶ 61. Omega stock fell 4% by the close of the day of the conference call. Id. ¶ 63. On that call, defendant Booth said: While we’re cautiously optimistic that portfolio-wide coverages have stabilized, we continue to see certain regional operators struggle with various operational pressures ... The first of these private operators, and one which we discussed on our last earnings call, has continued to experience [quarterly pressures], despite finally showing signs of operational improvements. ... We are consciously (sic) optimistic that the combination of these efforts will result in steadily improving margins and eventually return to its former profitability. However ... our past due rent has reached nearly ninety days in arrears. As such, any further deterioration and/or the failure of the tenant to achieve its budgeted plan may result in cash basis accounting and a potential review of the value of these capital lease assets. Id. On August 9, 2017, Omega filed its 10-Q for the quarter ending June 30, 2017. Id. ¶ 64. The 10-Q made the following statement regarding Orianna5: One of these operators has been facing liquidity pressures following a management transition, but has been showing signs of operational improvement and is making partial monthly rent payments. The current management of this operator is pursuing operational improvements, such as replacing executive management and senior level management, renegotiating vendor contracts and establishing a centralized referral network. The Company expects to sell two other facilities and transition its existing Texas portfolio to another operator during the third quarter of 2017. The Company is optimistic that the combination of these efforts will result in improving margins and performance by this operator. The company is currently recording rental revenue from this provider on an accrual basis. The company continues to monitor the operator’s operating plan and in the event its performance deteriorates, the company will reassess the carrying value of the portfolio and consider recording future rental revenue on a cash basis. Id. IV. Omega’s Third Quarter 2017 Communications & Activities Orianna’s continued failure to pay rent resulted in Omega placing them on a cash basis for revenue recognition during the third quarter of 2017. On October 30, 2017, Omega issued a press release, in which defendant Stephenson stated: During our second quarter earnings call, we stated we were closely monitoring one of our operators and may have to place them on a cash basis for revenue recognition if their performance did not improve. Since Orianna did not achieve their revised operating plan and pay their full contractual rent, we placed them on a cash basis and therefore our third quarter results, including AFFO [“Adjusted Funds From Operation”] and FAD [“Funds Available For Distribution”], do not include any revenue related to Oriana. ... Since 93% of our Orianna portfolio was classified as a direct financing lease, placing them on a cash basis and initiating the process to transition some or all of their portfolio to new operators also required us to record several large provisions related to the direct financing leases during the quarter. ... We are lowering our 2017 guidance to reflect the temporary loss of third and fourth quarter 2017 revenue primarily related to placing Orianna ... on a cash basis. Id. ¶ 68. Also on October 30, 2017, in response to the press release, Jeffries analyst Omotayo Okusanya wrote: Orianna ... did not achieve their revised operating plan and pay its full contractual rent. ... The disparity between reported AFFO/sh and our estimates is attributable to the nearly $12M a quarter in rents the company is not recording from Orianna ... While the tenant issues in the [Omega] portfolio were made evident to investors in 2Q17, the magnitude of the impairment from Orianna, the lowered full year guidance, and continued concerns about tenant credit risk will likely weigh heavily on the stock market. Id. ¶ 72. On October 31, 2017, Omega held a conference call to discuss its third quarter results. Id. ¶ 69. Subsequent to the October 31 conference call, Omega stock fell 6.8%. Id. ¶ 70. On the call, defendant Pickett stated “[t]he reduction in adjusted FFO and FAD is primarily related to converting the Orianna portfolio to cash basis accounting ... .” Id. Defendant Stephenson stated, “[w]e have lowered our 2017 adjusted FFO guidance to $3.27 to $3.28 per share. The reduction is primarily a result of two items: first, it reflects the temporary loss of Orianna revenue for both the third and fourth quarters ... .” Id. Defendant Booth stated “Orianna ... has fallen significantly behind on rent and as a result has been placed on a cash basis accounting ... While we have endeavored to assist Orianna in streamlining operations by transitioning both their Northwest and Texas regions, the overall portfolio continues to struggle in past due rent headwinds.” Id. On November 7, 2017, Omega filed its 10-Q for the quarter ending September 30, 2017. Id. ¶ 71. The 10-Q stated: Orianna has not satisfied the contractual payments due under the terms of the remaining two direct financing leases or the separate operating lease with the Company and the collectability of future amounts due is uncertain. The company is in preliminary discussions with Orianna regarding future actions. Such actions may include a) the sale of some or all of the facilities, b) transitioning some or all of the facilities from Orianna to other operators and c) pursuing legal action to enforce the terms of the existing agreements. Id.\n\nPlaintiffs argue a two-pronged theory of liability under § 10(b) of the Exchange Act. First, plaintiffs assert that Omega used both the fact and the non-disclosure of the working capital loan to make various material misrepresentations of its FFO and AFFO. In other words, plaintiffs argue that characterizing rent payments from Orianna as income – when Orianna was using funds loaned from Omega to pay rent – is a false representation of Omega’s FFO and AFFO. Second, plaintiffs argue that defendants’ failure to disclose the working capital loan was a material omission that independently establishes liability under § 10(b). In response, defendants assert that the working capital loan did not make their FFO and AFFO figures misstatements, as the complaint does not contain “well-pleaded facts” that support the proposition “that Omega’s treatment of the Working Capital Loan proceeds violated GAAP.” Omega’s Reply Br., ECF No. 56, at 7. Defendants further argue that 10(b) claims related to omission of the working capital loan fail for: 1) lack of materiality; 2) lack of scienter; and 3) failure to plead loss causation.\n\ncalls. ¶¶ 43, 45, 47, 50, 53, 62, 65. Plaintiffs argue that “[t]he working capital loan is material because it was a clandestine effort by Omega to prop up Orianna, Omega’s second largest operator, whose success or failure would materially impact Omega.” Pls.’ Opp. Br., ECF No. 55, at 20. Plaintiffs further assert that the loan was material because Omega made the loan using either 46.6% of its cash on hand or 12% of its revolving credit line. Id. Lastly, plaintiffs argue that materiality should be assessed on the basis of the value of properties leased to Orianna, and that “[t]he relevant number ... is ... the threat to Omega’s $619 million investment in Orianna that Orianna’s financial condition had placed in jeopardy.” Id. In response, defendants’ argue that we assess materiality by using quantitative factors. See Defs.’ Br., ECF No. 52, at 21 (“the Working Capital Loan amounted to only 0.21% or 0.17% of Omega’s total assets.”).\n\nPlaintiffs also rely on the second prong of scienter, i.e., conscious misbehavior or recklessness. Plaintiffs assert that “Omega was only able to report that Orianna was not seriously delinquent in its obligations by essentially paying itself.” Pls.’ Opp. Br., at 14. Plaintiffs further allege that “[d]efendants knew that Orianna’s condition was materially more dire than they disclosed to the market.” Id. Thus, the argument goes, “defendants knowingly or recklessly failed to provide investors with material information of which they were aware that disabled investors from understanding the risks that Omega faced with respect to its second largest operator.” Id. at 17. Noting Omega’s disclosure of a working capital loan that Omega considered providing to another struggling tenant, plaintiffs contend that the decision to disclose that loan makes their non-disclosure of the loan to Orianna reckless. Id. at 16. Additionally, plaintiffs allege that defendants recklessly downplayed Orianna’s risk of bankruptcy or insolvency.9 Id. at 16-17."
  },
  "outcome": {
   "amount": 30750000,
   "amountIsTheRequestedAmount": false,
   "date": "2023-04-25",
   "description": "After the district court dismissed the first amended complaint in 2019, the Second Circuit reversed in 2020 (968 F.3d 204), holding the non-disclosure of the working capital loan to the operator actionable and scienter adequately pleaded. On remand the court largely denied a renewed motion to dismiss (Sept. 28, 2021). The parties then settled; the court granted preliminary approval on December 27, 2022, and on April 25, 2023 entered an Order and Final Judgment approving a $30,750,000 cash settlement for the class of Omega securities purchasers (https://storage.courtlistener.com/recap/gov.uscourts.nysd.484014/gov.uscourts.nysd.484014.167.0.pdf). Attorneys' fees were paid out of the settlement fund.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "none",
   "finalAmount": 30750000,
   "finalNote": "Court-approved class settlement of $30.75 million (S.D.N.Y. Order and Final Judgment, ECF No. 167, April 25, 2023); fees came out of the fund; no appeal of the settlement."
  },
  "expectedRole": "Shareholder / Plaintiff Class",
  "category": "reit-securities",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "wheeler-reit-khoshaba-2024",
  "source": {
   "caseName": "Khoshaba v. Stilwell (Wheeler Real Estate Investment Trust stockholder class action)",
   "court": "U.S. District Court for the Eastern District of Virginia, Norfolk Division",
   "docket": "2:24-cv-00237-MSD-DEM",
   "decided": "2024-09-13",
   "url": "https://storage.courtlistener.com/recap/gov.uscourts.vaed.552123/gov.uscourts.vaed.552123.40.0.pdf",
   "outcomeUrl": "https://storage.courtlistener.com/recap/gov.uscourts.vaed.552123/gov.uscourts.vaed.552123.99.0.pdf",
   "excerptNote": "documentText is verbatim from the court's September 13, 2024 Opinion and Order on the defendants' motions to dismiss (ECF No. 40): most of Part I (Background, sections A-F and the description of the three counts and relief sought), plus the sentences in Part III that summarize the Individual Defendants' arguments (direct vs. derivative harm, business judgment rule, charter exculpation, unjust enrichment) and the plaintiff's response on the business judgment rule. Removed: the opening paragraph's ruling, parts of the proxy-fight history, individual note-purchase figures for three directors, the plaintiff's tenure as CEO, the Exchange Offer's terms, the August 2023 Form 10-Q quotation, the injunctive relief sought, several of the plaintiff's letters to the board, the Stilwell ownership-limit agreement paragraph, the procedural history, legal standards, and every sentence of the court's analysis or rulings (including which claims were dismissed). The PDF is a scanned image; the source file is its OCR text layer re-ordered by word position, with page headers removed and footnotes moved to the end; OCR artifacts (e.g. stray '//', 'u', 'tt' for quotation marks) are left exactly as extracted. The settlement amount comes from the court's November 25, 2025 Memorandum Opinion granting preliminary approval (ECF No. 99) and the April 1, 2026 final judgment, not from the excerpt."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the lead plaintiff, a former officer and common stockholder, and the putative class of common stockholders of Wheeler Real Estate Investment Trust, Inc., a shopping-center REIT, in a class action in the Eastern District of Virginia alleging that directors breached their fiduciary duties (and that affiliated hedge funds aided and abetted the breaches) by structuring convertible-note and preferred-stock transactions that diluted the common stock. The plaintiff has demanded a jury trial and the case is proceeding toward class certification and trial. The facts below are from the court's opinion on the motions to dismiss.",
   "documentText": "The Complaint was filed both derivatively on behalf of Wheeler Real Investment Trust, Inc. (\"Wheeler\" or \"the Company\") and directly on behalf of Plaintiff and a putative class of Wheeler common stockholders.^ ECF No. 1, at 1. In his Complaint, Plaintiff challenges a series of business decisions and financial transactions made by members of Wheeler's Board of Directors (the Board\") and corporate management from approximately 2021-2024. Id. at 2. All Individual Defendants are past or current members of Wheeler's Board, with the exception of M. Andrew Franklin (\"Franklin\"), who is the current Chief Executive Officer (\"CEO\") of Wheeler. Id. at 8. The Stilwell Fund Defendants are investment funds allegedly owned and controlled by Joseph Stilwell (\"Stilwell\"), an Individual Defendant and current member of Wheeler's Board. Id. at 7. \n\nEstablished in 1999 and incorporated under Maryland law, Wheeler is a real estate investment trust that owns, leases, and operates commercial real estate. with a primary focus on grocery- anchored shopping centers. Id. at 9. From 2016-2018, Wheeler registered and issued over three million shares of its Series D Preferred Stock ft (\"D Stock\") through two separate offerings.^ Id. at 9-10. Wheeler first registered and offered 1,600,000 shares of dividend-bearing D Stock in September of 2 016.^^ Id. at 9. Under the D Stock offering terms, for eligible years in which D Stock dividends were not paid in full, the dividend rate cumulatively accrued subject to a maximum annual rate. Id. Wheeler had the ability to redeem these shares of D Stock (i.e. buy them back at the Company's discretion) on or after September 21, 2021, for $25 per share in cash — plus all accrued and unpaid dividends until September 21, 2023 {the \\\\ Redemption Date\"). Id. at 10. Critically, on or after the Redemption Date, the shareholder could cause Wheeler to redeem the holder's D Stock shares for $25 per share (plus accrued and unpaid dividends) in cash or shares of common stock. Id. In January of 2018, Wheeler issued an additional 1,552,392 [shares of D Stock] for a price of $16.50, // a figure \"well below // the $25 redemption price that D Stockholders would be able to trigger on or after the Redemption Date. Id. In December of 2018, Wheeler announced that it u would not pay its fourth quarter dividends for the [D Stock] shares. // Such dividends have been suspended, and thus accruing, since December 2018. Id.\n\nIn Plaintiff's telling, Stilwell convinced stockholders to elect him and his nominees to the Board by criticizing Wheeler's poor capital allocation decisions. u specifically the issuance of D Stock which, in Stilwell's view. w expose[d] the common stockholders to great consequences in the future. II Id. at 12. These \"great consequences. // in Stilwell's description, included the prospect of all Series D holders decid[ing] to redeem their . . . preferred shares. // Id. Should such redemption occur, Wheeler \\\\ would have to pay $90,015,900 in cash or issue the common stock equivalent, thereby significantly diluting existing common stockholders. // Id. On July 5, 2021, Plaintiff resigned as CEO and withdrew from consideration for reelection to the Board. Id. From Plaintiff's perspective, Stilwell and his allies on the Board pushed [him] to resign as CEO\" to expand their control over the Company\" through the establishment of a u Stilwell-majority Board. // Id. Indeed, Plaintiff asserts that Stilwell and the Board members whose nominations Stilwell supported now viewed the [D Stock] as an opportunity to enrich themselves\" and were thus \\\\ [u]nsatisfied with Plaintiff's judicious approach to handling the Company's capital. n Id.\n\nOn July 22, 2021 — approximately two weeks after Plaintiff's resignation as CEO — Wheeler published a press release announcing a \"Rights Offering\" designed to raise capital. Id. at 14. Under the terms of the Rights Offering, each of Wheeler's common stockholders became eligible to purchase senior subordinated convertible notes (the \"Notes\"), a form of debt security that was convertible at the holder's option to shares of Wheeler's common stock, ordinarily at a price of $6.25 per share of common stock (the Conversion Price\"). Id. at 2-3; see 7 Tenn. Juris. Corporations § 18 (2024) Importantly, on or following the Redemption Date, if at least 100,000 shares of D Stock were redeemed for common stock, the conversion rate for the Notes to common stock would be discounted below the Conversion Price to the lesser of two options: (1) 45 percent below the original Conversion Price; or (2) 45 percent below the lowest price at which a D Stockholder had converted his D Stock shares to common stock. Id. at 14. In explaining the primary purpose behind the Board's approval of the Rights Offering, Plaintiff cites the Rights Offering Prospectus (the Prospectus\") filed with the Securities and Exchange Commission (the SEC\"), and highlights language suggesting that the Offering was intended to raise sufficient capital to fund future repurchases of . . . [D] Stock. // Id. at 14. To that end. the Prospectus acknowledges that there is a significant risk that [Wheeler] will not have sufficient cash to pay the aggregate redemption price, and would not be able to meet our redemption obligation without liquidating assets and/or substantial dilution of our Common Stock. // Id. at 15. Plaintiff thus observes that the Board and management \"plainly understood the gravity of the potential consequences should the Company fail to reduce the amount of outstanding [D Stock] before the Redemption Date. // Id.\n\nAfter the Rights Offering closed on August 13, 2021, Plaintiff alleges that Individual Defendants Stilwell, Borrack, Campbell, Poskon, Paris! and Franklin (who was appointed CEO following Plaintiff's resignation) had collectively purchased over 90 percent of the available Notes. Id. Plaintiff refers to these Individual Defendants as the \\\\ Conflicted Insiders. Id. at 8. Importantly, Plaintiff claims that Stilwell purchased the vast majority of these Notes personally or through the Stilwell Fund Defendants. Id. at 15 . Indeed, by Plaintiff's calculation, Stilwell and the Fund Defendants purchased 999,995 Notes for nearly $25 million. Id. Given the Board members' Notes ownership. Plaintiff contends that the foregoing directors (and the CEO, Franklin) were improperly incentivized to maximize the value of the Notes, no matter the effect on the common stock price. Id. at 16. To that end. Plaintiff alleges that the so-called Conflicted Insiders preserved the amount of outstanding shares of D stock in order to benefit from the Notes' discounted conversion rate that would be triggered by the eventual redemption of 100,000 D Stock shares. Id. at 16 . Plaintiff adds that these director defendants (and CEO Franklin) recognized that the preceding course of action would undermine the original purpose of the Rights Offering — to raise money to buy back outstanding shares of D Stock to reduce the redemption risk posed by such outstanding shares. Id.\n\nIn December of 2021, the Board elected to pay interest on all the Notes through the further issuance of D stock, thereby increasing the outstanding shares of D stock and the potential redemption exposure by over $2,842,725, Id, at 17. Five months later, in November of 2022, Wheeler attempted to buy back shares of D stock prior to the looming Redemption Date through an \"Exchange Offer. // Id. at 19. The Exchange Offer produced the valid tender of only 26.8 percent of the outstanding D Stock shares — less than the minimum number of shares necessary to effectuate the Exchange Offer — and therefore failed. leaving all shares of D stock outstanding. Id. at 19. Lamenting the unsuccessful Exchange Offer, Plaintiff insists that w there was no business justification for failing to buy back all or nearly all Series D shares with the Redemption Date fast approaching. n Id. at 20. Indeed, Plaintiff maintains that the failure to do so is attributable to select Individual Defendants' personal financial interests in preserving the amount of outstanding preferred stock so that they could profit from the discounted conversion rates on their Notes after the Redemption Date. // Id. at 19. At odds with Plaintiff's recommendation for Wheeler's capital management, the Company stated in its Form 10-K that it does not believe it is in its interests to liquidate assets or incur indebtedness to fund cash redemptions of the Series D Preferred Stock, // while also acknowledging that the aggregate liquidation value could reach $119.80 million on the Redemption Date. Id. at 21. \n\nOn May 19, 2023, eight days after receiving Plaintiff's letter, Wheeler's Board and management decided to again pay interest on the Notes in D Stock, increasing the number of outstanding D Stock shares as the Redemption Date approached. Id. at 22 . Separately, on June 1, 2023, the Board invested $3.5 million for w limited partnership interests // in Stilwell Activist Investments, L.P. , one of the Fund Defendants that is allegedly owned and controlled by Stilwell. Id. at 23. Plaintiff maintains that this investment explicitly enriched Stilwell and his fund with cash that should have been used to reduce the outstanding Series D shares. // Id.\n\nThroughout 2023, Wheeler's stock price had materially declined, a downward trajectory that Plaintiff attributes to the impending dilutive event\" recognized in the foregoing Form 10-Q. Id. By May of 2023, Wheeler's stock price had fallen below NASDAQ's minimum bid price of $1.00. To address the deterioration of its stock price, on August 17, 2023, the Board authorized a 1 for 10 reverse stock split of shares of common stock. Id. This stock split reduced the conversion rate of Notes to common stock but did not eliminate the Notes' conversion discount that would be triggered by the redemption of 100,000 shares of D Stock. Id. On September 1, 2023, two Individual Defendants and Board members — Kerry Campbell and Stefani Carter, now acting in their capacity as members of a \"Related Person Transactions Committee allegedly authorized Wheeler to make a second $3.5 million investment for limited partnership interests in Fund Defendant Stilwell Activist Investments, L.P. Id. at 25. Meanwhile, one month before the impending redemption in September 2023, Wheeler issued over 100 million shares of common stock at $0.01 par value per share to account for expected D Stock redemption. announcing that such redemptions would be processed monthly beginning in October. Id. In this first month of redemptions alone, Wheeler issued over two million shares of common stock to eligible D Stock shareholders, resulting in an aggregate redemption price of approximately $6.46 million. Id. Because 100,000+ D Stock shares had been redeemed. the redemptions triggered the discount on the conversion price from Notes to common stock, which, in Plaintiff's estimation. more than doubled Stilwell's beneficial ownership of the Company to 83.7 percent of Wheeler's common stock by October 20, 2023 . Id. at 26. The putative class of common stockholders (who did not participate in the Rights Offering) suffered severe dilution, Plaintiff observes. Id. In November of 2023, the second month of redemptions, the Company was \"forced\" to issue over 14 million shares of common stock to settle the aggregate redemption price of approximately $12 million, driving down the common stock price while the Notes continued to enjoy dramatically improved common stock conversion rates under the terms of the Rights Offering. Id. As a result. the Noteholders who elected to convert their Notes to common stock amassed greater ownership of the Company. Id. Over the course of the next four months, D Stock redemptions continued, and the common stock price continued to decline, while the Notes' common stock conversion rates grew significantly more attractive. Id. By April of 2024, Wheeler's common stock was trading at $0.14 per share, which, by Plaintiff's calculation. represents a decline in value of over 99 percent in under three years. Id. at 5. Indeed, Plaintiff reports that his common stock ownership dwindled from over 11 percent to 1.2 percent or less of outstanding shares. Id. at 6. Conversely, Stilwell managed to \\\\ parlay his Notes into an effective 80-plus percent ownership stake\" in Wheeler. Id. Wheeler is still \"far from paying off all of the Series D shareholders. n and will be \\> unable to do so without further diluting the common stock. tt Id.\n\nCount I alleges breach of fiduciary duty directly and derivatively against the Individual Defendants; Count II alleges, directly and derivatively against the Stilwell Fund Defendants, aiding and abetting the Individual Defendants' breaches of fiduciary duty; and Count III alleges Unjust Enrichment both directly and derivatively against the so- called Conflicted Insiders (certain Individual Defendants) and the Stilwell Fund Defendants. Id. at 40. Plaintiff seeks damages personally. on behalf of the putative shareholder class, and on behalf of Wheeler. Id. at 41-42. \n\nIndividual Defendants argue that Plaintiff's direct claims should be dismissed because direct relief is not available when a plaintiff suffers the same harm as all other shareholders. ECF No. 25, at 29.\n\nTo that end, the Individual Defendants first maintain that Count I fails to state a claim for breach of fiduciary duty because Plaintiff does not allege sufficient facts to overcome Maryland's codified \"business judgment rule, // and fails to allege sufficient facts to overcome the immunity extended to the Board by Wheeler's corporate charter. Second, the Individual Defendants argue that Count III fails to plead the facts necessary to state a claim for unjust enrichment.\n\nWhile it is undisputed that most Individual Defendants, as Wheeler directors, will receive the benefit of the presumption codified in MCA 2-405.1, the parties disagree on the applicability of the business judgment rule at the 12(b)(6) stage of review. Plaintiff, seeking to avoid dismissal, cites Goldstein V. Berman for the proposition that the applicability of the business judgment rule is largely a question of fact that is not appropriate for determination based solely on the allegations of the complaint. // No. Civ. 12-2507, 2014 WL 824050, at *5 (D. Md. Feb. 28, 2014) . The Individual Defendants counter that the Goldstein court's preceding observation is limited to the facts of that case, and posit that the acceptance of such proposition would improperly allow plaintiffs to routinely avoid business judgment rule-based dismissal at the 12(b)(6) stage.\n\nTherefore, the Individual Defendants argue that because Plaintiff's Complaint fails to allege that the directors either received an improper benefit or engaged in active and deliberate dishonesty, Wheeler's exculpation clause forecloses Plaintiff's breach of fiduciary claim (Count I) to the extent it seeks monetary damages. ECF No. 25, at 34 .\n\nThe Individual Defendants also seek dismissal of Count III, which alleges that the \"Conflicted Insiders n (Individual Defendants Stilwell, Borrack, Campbell, Poskon, Paris!, and Franklin) and the Stilwell Fund Defendants were unjustly enriched through (1) their receipt of series D shares as interest on their Notes and (2) the discounts on the Conversion Price of their Notes. ECF No. 1, at 40 . Moreover, Count III alleges that Stilwell and one of the Stilwell Fund Defendants were unjustly enriched in receiving at least $7 million in investments by the Company in lieu of buying back Series D Shares. // Id.\n\nFor their part, the Individual Defendants contend that Plaintiff's allegations fail to state a claim for unjust enrichment because neither Plaintiff nor the putative class of common stockholders performed a service for or provided any benefits to the relevant Individual Defendants. ECF No. 25, at 36."
  },
  "outcome": {
   "amount": 7125000,
   "amountIsTheRequestedAmount": false,
   "date": "2026-04-01",
   "description": "After the court's September 13, 2024 ruling on the motions to dismiss, discovery proceeded and the plaintiff moved for class certification in July 2025. The parties reached a settlement in principle on August 20, 2025. In a Memorandum Opinion of November 25, 2025 (ECF No. 99, https://storage.courtlistener.com/recap/gov.uscourts.vaed.552123/gov.uscourts.vaed.552123.99.0.pdf) the court certified a settlement class of holders of Wheeler common stock as of August 16, 2021 and purchasers from August 16, 2021 through September 20, 2023, and preliminarily approved a settlement under which defendants pay $7.125 million for release of all claims. After a fairness hearing on March 31, 2026, the court entered its Final Judgment Approving Class Action Settlement on April 1, 2026 (ECF No. 113) and on April 6, 2026 awarded attorneys' fees and expenses out of the fund (counsel had sought up to 28% plus up to $665,000 in expenses).",
   "attorneysFeesAtTrial": null,
   "appellateChange": "none",
   "finalAmount": 7125000,
   "finalNote": "Court-approved class settlement of $7.125 million (preliminary approval opinion Nov. 25, 2025; final judgment Apr. 1, 2026); fees paid from the fund; no appeal."
  },
  "expectedRole": "Shareholder / Plaintiff Class",
  "category": "reit-securities",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "pryority-v-amt-properties-2021",
  "source": {
   "caseName": "Pryority Partnership v. AMT Properties, LLC, et al.",
   "court": "Court of Appeals of Tennessee at Knoxville, on appeal from the Circuit Court for Hamilton County (No. 17C1340)",
   "docket": "No. E2020-00511-COA-R3-CV",
   "decided": "2021-03-10",
   "url": "https://www.tncourts.gov/sites/default/files/e2020-00511_pryority_v._amt.pdf",
   "excerptNote": "Verbatim from Part I (the parties' pleadings and summary-judgment positions, the Lease's roof covenant, the roof-replacement cost), Part IV (testimony about the roof's history and Mr. Crick's testimony, the Exhibit A lease language), Part V (the landlord's rent-refund argument and Mr. Crick's testimony, including the $193,006.35 he testified AMT spent, which is the tenant's stated claim) and the Section 28 fee clause from Part VI. Removed: the syllabus, every sentence stating the trial court's findings of breach, constructive eviction, misrepresentation, credibility or unreasonable delay, the damages and fee awards, the TCPA ruling, 'The trial court awarded AMT the full amount of damages sought,' and all appellate analysis and holdings. Footnote 1 (lease-date correction) and footnote markers omitted; page numbers removed. The pleading sentence ending 'vacated the building when the roof was not immediately repaired' was dropped because a footnote interrupts it in the PDF."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the tenant, AMT Properties, LLC, and its owner-guarantor David Crick, in the Hamilton County, Tennessee Circuit Court. The landlord, Pryority Partnership, sued for unpaid rent on a commercial warehouse lease after AMT vacated; AMT has counterclaimed for breach of the landlord's roof-repair covenant, negligent misrepresentation, constructive eviction and the Tennessee Consumer Protection Act, and the case is set for a bench trial. The lease has a prevailing-party legal fees clause.",
   "documentText": "On December 13, 2017, the lessor, Pryority Partnership (“Pryority”), filed a complaint in the Hamilton County Circuit Court (“trial court”) against its lessee, AMT Properties, LLC, and the lessee’s owner, David Crick (collectively, “AMT”). Pryority asserted that the parties had executed a written lease agreement (“the Lease”) on June 9, 2017, concerning a commercial warehouse (“the Warehouse”) located in Chattanooga, Tennessee, and that Mr. Crick had personally guaranteed AMT’s performance under the Lease.\n\nAccording to Pryority, although the Lease provided that AMT would pay rent payments of $68,333.33 every four months, AMT had failed to make the required payment due on December 1, 2017. Pryority alleged that rent and late fees continued to accrue despite the fact that AMT had sent a letter on November 22, 2017, notifying Pryority that it was vacating the Warehouse. Pryority sought an award of unpaid rent, late charges, interest, and attorney’s fees pursuant to the Lease.\n\nAMT filed an answer and counter-complaint on January 29, 2018. AMT asserted that the Warehouse was untenantable due to holes in the roof and significant water incursion. According to AMT, it had intended to operate a factory/machine shop for the production of various items in the Warehouse but had been unable to complete the necessary electrical work to operate its machinery because of the water issues. AMT also claimed that Pryority had failed to repair the roof leaks despite knowledge of the problems. AMT denied that Pryority was entitled to any relief, asserting, inter alia, the defenses of impossibility of performance, equitable estoppel, and failure of consideration. In its counter-complaint, AMT asserted that Pryority had marketed the Warehouse as ready to occupy at the time of the Lease’s execution. AMT claimed that after it brought the roof issues to Pryority’s attention, Pryority failed to repair or replace the roof despite having assured AMT that this would be accomplished. AMT further asserted that it tried for several months to occupy the Warehouse but was unable to do so due to the water-related problems. AMT asserted that as a result, although it had spent a total of $191,438.38 in rent, deposits, upgrades, and repairs to the Warehouse, it was forced to abandon the Warehouse and move its business elsewhere. AMT alleged that Pryority had breached the Lease’s provisions regarding Pryority’s duty to keep the building in good repair, negligently misrepresented the condition of the Warehouse, and engaged in deceptive practices pursuant to the Tennessee Consumer Protection Act (“TCPA”). AMT sought an award of compensatory damages, treble damages, attorney’s fees, and costs.\n\nOn October 11, 2019, Pryority filed a motion for summary judgment accompanied by a statement of undisputed material facts and supporting documentation. In its statement of undisputed material facts, Pryority claimed that AMT possessed knowledge of the leaking roof when it executed the Lease. Pryority averred that it had attempted repair of the roof and was in the process of obtaining financing to replace the roof when AMT unilaterally decided to abandon the Warehouse and breach the Lease. According to Pryority, AMT leased the Warehouse in an “as is” condition.\n\nAs the trial court noted, the Lease contained a provision stating that Pryority was responsible for keeping the roof in good repair and for providing a building that was “structurally sound for the intended use of a machine shop.”\n\nAMT had to invest significant funds to add wiring and perform electrical work required in order to operate its machinery. Moreover, AMT would have been required to spend approximately $100,000.00 to have its large and expensive pieces of machinery moved and installed. According to the court’s findings, Pryority was struggling to determine whether to repair the roof or replace it and what the respective costs would be. In August 2017, Mr. Crick informed Pryority that he needed to know the plan for repairing the roof before he spent $100,000.00 to move and set up his equipment. AMT proceeded with its upgrades to the Warehouse in the meantime.\n\nThe partial roof replacement ultimately cost Pryority $132,940.00, and the court noted that one of Pryority’s agents had testified that Pryority did not need to obtain financing to pay that cost.\n\nWith regard to the severity of the roof leaks, the proof is clear that the roof had been leaking extensively for a number of years, as demonstrated by the testimony of attorney Richard Jahn. Mr. Jahn testified that he had served as bankruptcy trustee concerning a former tenant of the Warehouse who had filed a bankruptcy action in 2014. Mr. Jahn explained that he had spent time in the building in 2014 and observed significant roof leaks and water intrusion during his tenure as trustee. In support, Mr. Jahn presented pictures, taken in 2014, displaying the severity of the roof leaks. Mr. Jahn further testified that he made Pryority aware of the leaks at that time. Pryor Bacon, III, one of the partners of Pryority who testified as its representative, admitted that the roof had been leaking since 2014 and that numerous attempts to repair it had been made with varying degrees of success. According to the undisputed proof, the roof was still leaking significantly in 2017.\n\nMr. Crick acknowledged during his testimony that he was aware the roof had been leaking at the time he signed the Lease. According to Mr. Crick, although the weather was dry when he toured the Warehouse before entering into the Lease, visible evidence of roof leaks was still present, such as water stains, rust, and black mold. Mr. Crick related that Pryor Bacon, Jr., the other Pryority partner and the father of Pryor Bacon, III, had assured him that the roof leaks could be remedied by August 1, 2017.\n\nMr. Crick also maintained that he relied on this assurance when he entered into the Lease. Mr. Crick pointed out that he had made Pryority aware of his intended use for the Warehouse. Moreover, Pryor Bacon, III, acknowledged during his testimony that Pryority was aware at the time of the Lease’s execution that AMT intended to use the Warehouse as a machine shop with electrical equipment. Mr. Crick also stated that he was unaware of the severity of the roof leaks at the time he executed the Lease.\n\nMoreover, although Pryority has attempted to rely on language contained in the body of the Lease providing that the Warehouse was accepted by AMT in its “existing condition,” Exhibit A to the Lease expressly provides that the Warehouse “is structurally sound for the intended uses as a machine shop” and that the covenants contained in Exhibit A would “supersede any previous statements in the lease.”\n\nPryority argues that the proper remedy for constructive eviction is relief from the obligation to pay rent following the tenant’s abandonment of the leased property. See, e.g., Morrison v. Smith, 757 S.W.2d 678, 682 (Tenn. Ct. App. 1988) (explaining that damages for constructive eviction accrue only after abandonment).\n\nIn the case at bar, Mr. Crick testified that AMT desired to move its machine shop into a larger facility because its business was growing and that AMT anticipated purchasing additional machinery in order to increase production and accommodate demand. AMT was also expanding the scope of its business to include the production of hydroelectric components, which required the purchase of different and larger machines. As Mr. Crick explained, AMT employed computerized, numerically controlled (“CNC”) machines in its operations, the value of which ranged from $100,000.00 to $500,000.00 each. According to Mr. Crick, the CNC machines each weighed between ten and twenty tons and were extremely difficult to move. Once in place, operational CNC machines would have required AMT to install a specialized electrical system in the Warehouse at a cost of approximately $75,000.00. In addition, AMT would have been required to employ trained equipment movers to transport, level, and recalibrate the CNC machines when they were relocated to the Warehouse at a combined cost of approximately $100,000.00.\n\nMr. Crick testified that he spoke to both Pryor Bacon, Jr., and Pryor Bacon, III, concerning AMT’s intended use for the Warehouse before the Lease was signed. Following execution of the lease, Mr. Crick became aware of a major roof leak directly above the Warehouse’s main electrical panel in addition to numerous other leaks. Each time it rained, water would pour onto the panel, tripping the breaker. According to Mr. Crick, this leak was never fixed during AMT’s tenancy.\n\nMr. Crick further related that AMT had completed all of its repairs required under the Lease by the end of July. At that time, he sent an email to Pryor Bacon, Jr., stating that he believed the roof would need to be replaced because Pryority’s repair attempts had been unsuccessful. Mr. Crick explained that Mr. Bacon had mentioned that roof replacement might involve removing the existing roof, which would render the interior of the Warehouse completely exposed to the elements. For this reason, Mr. Crick decided to delay moving additional equipment into the Warehouse while asking Pryority for a definite timeframe within which the roof would be fixed. Mr. Crick had multiple conversations with Pryor Bacon, Jr., about the roof and the need for a dry building before AMT could proceed with setting up operations in the Warehouse. According to Mr. Crick, relocating and installing the CNC machines was a lengthy process, such that it would require approximately four months to become operational from the date AMT began to move its machinery.\n\nMr. Crick explained that although he repeatedly asked Pryority to provide a plan for rendering the Warehouse tenantable, he was never provided a definite date by which the building would be dry. Meanwhile, the Warehouse roof leaks continued to worsen with new leaks developing as time passed. Mr. Crick related that his last correspondence from Pryor Bacon, III, indicated that Pryority would need to refinance the Warehouse indebtedness in order to pay for a new roof, which process could be completed within a “few months.” Mr. Crick believed that AMT could not safely operate the CNC machines in a wet environment without causing damage to the machines or injury to employees. For this reason, Mr. Crick made the decision in November 2017 to vacate the building and cease paying rent. Mr. Crick explained that due to AMT’s inability to occupy the Warehouse for production purposes, AMT was forced to abandon bidding on several large contracts worth millions of dollars in revenue for AMT.\n\nMr. Crick testified that AMT ultimately expended $193,006.35 in rent, moving expenses, renovation expenses, and other costs related to AMT’s failed attempt to relocate to the Warehouse. Mr. Crick did not seek damages for lost revenue or profits.\n\nSection twenty-eight of the Lease contains the heading, “Legal Fees and Expenses,” and provides as follows: If it shall be necessary for either part[y] hereto to hire and/or obtain Legal counsel, pursue any remedy, or incur any other expense in order to force the other to comply with and/or perform any of the provisions, conditions, and covenants of this Lease, then the prevailing party shall be reimbursed by the other for the entire reasonable customary cost thereof such obligation being deemed to have accrued from the date of the commencement of any action and to be enforceable whether or not the action is prosecuted to judgment."
  },
  "outcome": {
   "amount": 193006.35,
   "amountIsTheRequestedAmount": true,
   "date": "2021-03-10",
   "description": "After a two-day bench trial the court found the landlord materially breached the lease's roof-repair covenant, negligently misrepresented the roof's condition and constructively evicted the tenant, and awarded AMT $193,006.35 in compensatory damages (the full amount it sought for rent, repairs, moving and other expenses) plus $69,002.68 in attorney's fees under the lease; the TCPA claim was denied. The Tennessee Court of Appeals affirmed in its entirety on March 10, 2021.",
   "attorneysFeesAtTrial": 69002.68,
   "attorneysFeesOnAppeal": "affirmed",
   "appellateChange": "affirmed",
   "finalAmount": 193006.35,
   "finalNote": "Affirmed in its entirety."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "donegal-v-christie-scott-2020",
  "source": {
   "caseName": "Donegal Associates v. Christie-Scott, LLC",
   "court": "Court of Special Appeals of Maryland (reported opinion), on appeal from the Circuit Court for Howard County (No. 13-C-17-113337)",
   "docket": "No. 385, September Term, 2019",
   "decided": "2020-11-19",
   "url": "https://www.mdcourts.gov/data/opinions/cosa/2020/0385s19.pdf",
   "excerptNote": "Verbatim from the Factual and Procedural Background, from its first sentence through Mr. Healy's testimony about permitting Ms. Bosley to operate from the space, plus the first sentence of footnote 4 (the monthly rent) appended at the end. Removed for length: the paragraphs on JLL's December 2016 holdover-rent e-mail, the two trial postponements, JLL's refusal to participate, the stylists' later retrieval of tools, the summary-judgment rulings, Exhibit 13, and the testimony of Ms. Frantz, Mr. Hearn, the 'squatters' witnesses, Ms. Bosley, and Mr. Healy's answers to the court's questions. Also removed: the headnote and the appellant's questions presented; footnotes 1-11 and footnote markers; page numbers; and everything from 'As indicated, counsel for Christie-Scott, in closing argument, abandoned all claims except the conversion claim. The court then made its oral ruling.' onward (the circuit court's findings on the tenancy, the counterclaim amount, lien, conversion, damages and punitive damages, and all appellate analysis and holdings). Paragraph breaks re-inserted at the opinion's own paragraph starts."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the tenant, Christie-Scott, LLC, which ran a hair salon in a Columbia, Maryland retail building owned by Donegal Associates, in its Howard County Circuit Court suit for wrongful eviction, trespass and conversion after the landlord locked it out by self-help and kept the salon's contents; the complaint seeks compensatory damages and $5,000,000 in punitive damages. The landlord has counterclaimed for holdover rent and misrepresentation. The case is set for a bench trial.",
   "documentText": "In 2005, Christie Kaier and Scott Schmidt, through Christie-Scott, LLC, purchased Victoria & Albert Hair Studio in Columbia, Maryland from the previous owners and assumed the commercial lease with Donegal. Christie-Scott continued to operate and grow the hair salon business for the next twelve years, during which time the parties had an amicable relationship and renewed the lease multiple times.\n\nThe parties’ commercial lease expired on October 31, 2016. Prior to that time, Christie-Scott began negotiating the terms of a new lease with Donegal through its property management company, identified as JLL. Christie-Scott had concerns regarding needed renovations and safety issues due to the declining character of the neighborhood, which had resulted in non-customers loitering, panhandling in the parking lot, and coming inside to use the bathrooms or the phone. The parties discussed potential renovations and efforts to eliminate uninvited pedestrian traffic, with Donegal bearing $50,000 of the cost and the balance to be covered by Christie-Scott and amortized in subsequent lease payments. Donegal began commissioning renovation plans at its own expense.\n\nWhen the lease expired on October 31, 2016, Donegal permitted Christie-Scott to remain in the space on a month-to-month basis while the lease negotiations continued, but there was no oral or written agreement to this effect. The lease provided as follows: 5. TERM AND TERMINATION: A. The Term shall begin on the Commencement Date and unless extended or renewed shall end without notice at midnight on the Termination Date. Tenant agrees to vacate the Premise at the end of the Term and that Landlord shall be entitled to the benefit of all summary proceedings to recover the possession of the Premise at the end of the Term as if statutory notice had been given. * * * C. If Tenant remains in possession of the Premises after the expiration of the Term, the Term shall not automatically renew by operation of law, and Landlord may consider Tenant as a Tenant-at-Will liable for the payment of Rent at the market rate as determined by Landlord or may consider Tenant as a “Tenant Holding Over” liable for double the market rate of Rent. In either event, all other covenants of his Lease shall remain in full force and effect.\n\nChristie-Scott continued to pay the same amount of rent during this period, but it did not pay real estate taxes or Common Area Maintenance (“CAM”) fees. Donegal did not communicate whether it considered Christie-Scott a holdover tenant or a tenant-at-will, but it billed Christie-Scott the same amount of rent, and it continued to deposit the rent payments.\n\nWhile the lease negotiations were ongoing, Christie-Scott was privately contemplating moving the business due to the declining character of the neighborhood and the resulting safety issues. In February 2017, it began researching new locations. In March 2017, Ms. Kaier called a staff meeting to discuss whether to find a new location or move ahead with fixes to the current one, and the employees unanimously voted to move to a new location. Christie-Scott settled on a location in Clarksville, secured a bank loan, and in June 2017, it signed a lease for the new space. A few days after the company signed the lease, Ms. Kaier contacted Mr. Hearn and informed him that the salon was not going to stay at Donegal’s property, and they would be moving by November 1, 2017.\n\nA few days later, on June 30, 2017, JLL sent a letter to Christie-Scott, stating that Donegal considered the salon to be a holdover tenant in accordance with Section 5C of the lease. It demanded immediate payment of double rent dating back to the expiration of the lease on October 31, 2016, a total of $75,939.76.\n\nAfter that letter, until October 2017, Christie-Scott remained in the space and continued to pay only the normal rent amount, which Donegal deposited. Christie-Scott made repeated requests for a face-to-face meeting with Donegal during this period, but no such meeting occurred.\n\nDuring the summer of 2017, Mr. Healy was approached by Dwight Platt, another commercial real estate owner, who offered to purchase the building from Donegal. Mr. Platt told Mr. Healy that he recently had sold a building in Baltimore County and needed to “park” the profits in another real estate investment by December for tax purposes. Donegal agreed to sell, with the condition that they close by December.\n\nOn September 8, 2017, Donegal filed, in the District Court for Howard County, a complaint for repossession of rented property due to non-payment of rent by Christie-Scott. 4 The rent prior to November 1, 2017, pursuant to the lease, was $9,492.47 per month. Ms. Kaier testified, and statements from Donegal confirm, that prior to the letter, from November 1, 2016 to June 2017, she had been billed for the regular rent, which she paid, and Donegal cashed the checks.\n\nThe trial was reset for November 9, 2017. Donegal, however, decided to pursue the nonjudicial remedy of self-help.\n\nSection 24A of the parties’ commercial lease provided that, if Christie-Scott breached “the covenant to pay Rent by failing to pay rent or all other sums of money which may be considered Additional Rent when due,” Donegal was permitted to take any of the following actions: (a) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord; but if Tenant shall fail to do so, Landlord may, without further notice and without prejudice to any other remedy Tenant may have for possession or arrearages in Rent, Additional Rent or damages for breach of contract, enter upon the Premises and remove Tenant and his effects by force if necessary, without being liable to prosecution for any claim of damages[.] . . . (b) Enter the Premises as the agent of Tenant, by force if necessary, without being liable to prosecution or any claim for damages and relet the Premises as the agent of the Tenant and receive the Rent therefor[.] . . . (c) Perfect and otherwise enforce a lien, which Tenant agrees that Landlord shall have, on all personal property, fixtures and trade fixtures of Tenant, presently existing or subsequently acquired, placed in the Premises by or for the benefit of the Tenant and may without notice and without liability to Tenant or other party be sold by Landlord at public or private sale with the proceeds being applied to amounts owed by Tenant and toward damages resulting from Tenant’s breach of this Lease.\n\nOn October 31, 2017, Donegal called a meeting to inform Mr. Hearn that it intended to seize possession of the salon through self-help on Monday, November 6, 2017, and “lock out the [t]enant.” It selected this date because the salon is closed on Mondays. At the meeting, Mr. Healy expressed frustration at the slow pace of the litigation in the District Court and believed that, “as a result of Donegal’s interpretation of the lease language and legal statutes,” repossession was permissible at that time. Donegal instructed JLL to coordinate changing the locks and hiring security to keep the premises “secure from the tenant.” Donegal’s attorney advised Mr. Hearn that “all hair salon product on site will become property of the landlord.”\n\nOn the morning of November 6, 2017, three days before the District Court hearing was scheduled on Donegal’s repossession action, Mr. Healy went to the salon with Donegal’s attorney, a locksmith, and a security guard, and they changed the locks and alarm codes on the doors. No advance notice was provided to Christie-Scott. The salon was closed that day, but one of Christie-Scott’s employees was present at the salon doing inventory when the repossession took place. Donegal’s attorney asked her to gather her belongings and leave, which she did. The employee called Ms. Kaier to inform her what had happened, but by the time Ms. Kaier got there from her home 45 minutes away, Donegal and its agents were gone.\n\nOn November 7, 2017, the day after the lockout, Christie-Scott filed a complaint against Donegal in the Circuit Court for Howard County, alleging, among other things, wrongful eviction, trespass, conversion, and tortious interference with a contractual right. In its closing argument, Christie-Scott effectively abandoned all counts except conversion. Accordingly, only that claim and Donegal’s two counterclaims were submitted to the court for consideration. As relevant to the conversion count, the complaint included an ad damnum clause requesting “judgment against [Donegal] for compensatory damages in an amount in excess of the minimum jurisdictional amount of the Circuit Court, plus punitive damages of five million dollars ($5,000,000)[.]”\n\nOn the same day that Christie-Scott filed its complaint, it filed a motion for a temporary restraining order (“TRO”) and preliminary injunction to enjoin Donegal from continuing the lock-out and to restore possession to Christie-Scott. On November 8, 2017, the court granted the motion for a TRO. On November 28, 2017, following a hearing, the court vacated its Order granting the TRO.\n\nOn May 16, 2018, Donegal filed a counterclaim. Count I alleged breach of the lease agreement by failing to pay rent as a tenant holding over since November 1, 2016, resulting in damages in excess of $155,000. Count II alleged misrepresentation regarding Christie- Scott’s intent to renew the lease. It requested “an amount in excess of $75,000” in compensatory damages and the same for punitive damages.\n\nA four-day bench trial began on April 15, 2019. Ms. Kaier testified that she began working at the salon in 1990, and her responsibilities grew until she became the manager. In 2005, after obtaining a loan for one million dollars, she and Mr. Schmidt purchased the salon. Ms. Kaier testified that she did not intentionally keep Donegal in the dark about Christie-Scott’s plans to relocate to Clarksville, but she did not finalize the decision to move until June. Within days of signing the lease, she advised Mr. Hearn.\n\nMs. Kaier had no notice that Donegal was going to change the locks. After the lockout, she struggled to keep the business afloat, but she was able to find a temporary location to continue operations. She did not remove items contained in the store at the time of the lockout, with the exception of some personal items. With regard to the business records, Ms. Kaier testified that she had online access to the salon’s client lists, client appointments, some employee records, the check register, and product lists, but she could not access contracts, invoices, or receipts remotely.\n\nChristie-Scott introduced Plaintiff’s Exhibit 5, an inventory list of all the retail products that were in the store at the time of the lockout. Retail products are items that customers purchase for home use, as opposed to professional products, which are used on the clients when they come in for services. The retail value of the 2,719 retail products listed on Exhibit 5 was $113,917.24.\n\nChristie-Scott also introduced Plaintiff’s Exhibit 6, an undated inventory list of the professional products in the salon, but Ms. Kaier conceded that it was made from memory, and she did not know the actual quantity because she had not been able to access the space to inventory what had been used since the last weekly order. The professional products inventory was itemized, but it did not include a total dollar amount for the products. Ms. Kaier testified that, on average, she ordered $2,000–$2,500 of professional products each week.\n\nMs. Kaier further testified that, in addition to the retail and professional products, there were numerous pieces of furniture, fixtures, equipment, and business records still locked in the space, a “good portion” of which she had intended to transport to the new location. She acknowledged, as did Mr. Schmidt, that some of the furniture was old and would not have gone to the new location.\n\nChristie-Scott also introduced numerous receipts and bank statements to establish damages for some of the moveable items, such as the salon chairs, the furniture in the reception area, a refrigerator, two washers and dryers, trollies, and more. Ms. Kaier testified that the salon might never financially recover due to the additional debt it incurred to buy all new items for the Clarksville space.\n\nCharlotte Healy testified that, after the lockout, she acted on behalf of Donegal to clear the space to “set it up for another salon.” She stated that she sold some product to individuals from other salons that came and “knocked on the door” to see what was available. She sold the items for a nominal fee, for a total profit of approximately $4,000. The items were not posted online or advertised publicly, and some were thrown away or donated. Other than the items sold, she did not remove any supplies, equipment, furniture, or records from the salon’s office, stating that they were still in the space at the time of trial. Unsold items were left on the premises, and she did not keep a record of what was sold.\n\nChristie-Scott introduced Plaintiff’s Exhibit 24, an inventory list, prepared on February 9, 2018, by Donegal’s consultant, of the remaining furniture, equipment, and other fixtures in the salon. The inventory list reflected a total estimated market value of $32,645.11, with an estimated market value of sold items in the amount of $6,623.48. The list was admitted over Donegal’s objection that it was work product of its hired consultant.\n\nJohn Healy testified as the corporate designee for Donegal. He decided to consider Christie-Scott a holdover tenant after the salon notified him that it would be moving, but this was a business decision. He proceeded with the lockout instead of waiting for the District Court proceedings to go forward because he had an agreement to sell the property to Mr. Platt by December, and he was concerned that Christie-Scott would not vacate in time. Donegal decided to sell the building in part because he and Mr. Greenfield were in their 80s, and there was no one willing and able to inherit the business from them.\n\nMr. Healy testified that he permitted Ms. Bosley to operate out of the space in the days following the repossession because it allowed him to mitigate his damages and to avoid spending money to renovate the property back to office space. He and Ms. Bosley orally agreed that Donegal would defer six months of rent to give her an opportunity to get the business off the ground, and after that period, they would reevaluate the next steps. Additionally, they agreed that Ms. Bosley would sell and use the products left in the space by Christie-Scott, and that she would give money from the sales to Donegal. Those monies would then be offset against the claim against Christie-Scott. In January 2018, Ms. Bosley wrote Donegal a check in the amount of $1,442.67 for these items. Mr. Healy explained that, although the building was in the process of being sold to Mr. Platt when he entered into the agreement with Ms. Bosley, Donegal had made an oral agreement with Mr. Platt that it would “be responsible for the Victoria and Albert situation.”\n\nThe rent prior to November 1, 2017, pursuant to the lease, was $9,492.47 per month."
  },
  "outcome": {
   "amount": 96633.96,
   "amountIsTheRequestedAmount": false,
   "date": "2020-11-19",
   "description": "After a four-day bench trial (the tenant having abandoned all counts but conversion), the court found the landlord liable for conversion, valued the converted property at $139,938.87 ($113,917.24 retail products plus $26,021.63 furniture, fixtures and equipment), offset $43,304.91 the tenant owed on the landlord's holdover-rent counterclaim, and awarded the tenant a net $96,633.96 in compensatory damages plus $1,000,000 in punitive damages. The amount recorded is the net compensatory award, excluding punitive damages. The Court of Special Appeals held the lockout was a lawful commercial self-help repossession and constructive conversion failed for lack of a pre-suit demand, reversed the compensatory and punitive awards, and remanded for the circuit court to revise its judgment (the unappealed $43,304.91 counterclaim finding stands).",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "reversed",
   "finalAmount": -43304.91,
   "finalNote": "Tenant award reversed; the landlord's $43,304.91 counterclaim stands, so the tenant's net position is a loss of that amount."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "buyers-choice-v-palm-beach-motors-2024",
  "source": {
   "caseName": "Buyer's Choice Auto Sales, LLC v. Palm Beach Motors, LLC",
   "court": "Florida Fourth District Court of Appeal, on appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County (L.T. No. 502020CA012552XXXXMB)",
   "docket": "No. 4D2023-0147",
   "decided": "2024-07-17",
   "url": "https://4dca.flcourts.gov/pre_opinion_content_download/2437383",
   "excerptNote": "Verbatim from the Background section: the fence provision and negotiations, the text-message history, the section 83.201 facts, the complaint and Remedies clause, the rent paid before suit and the landlord's counterclaim, the tenant's two damages claims (theft/vandalism damages and return of the $87,862.50 in rent it paid, which is the tenant's stated demand), and the landlord's counterclaim items and lease duties. Removed: the opening summary and disposition paragraphs, the trial court's rulings (denial of theft damages as speculative, the termination ruling, the rent-refund award, the rent-withholding findings, and the denial of the counterclaim), and all appellate analysis and holdings."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the tenant, Palm Beach Motors, LLC, which operates a used-car lot on premises leased from Buyer's Choice Auto Sales, LLC, in its Palm Beach County Circuit Court suit for fraudulent and negligent misrepresentation and breach of the lease over the landlord's unfulfilled promise to fence the lot. The landlord has counterclaimed for unpaid rent, real estate taxes and cleanup costs, and the case is set for a bench trial.",
   "documentText": "For several years, Tenant rented the leased premises from Landlord to operate Tenant’s used car lot business. As the existing commercial lease agreement was approaching renewal, Landlord and Tenant discussed installing fencing around the leased premises. Tenant wanted fencing installed, which was “an absolute requirement,” because Tenant’s business was falling victim to theft and vandalism. Despite Landlord’s initial reluctance to install fencing, Landlord ultimately agreed and handwrote the following provision onto the Lease, which the parties then signed: Landlord will pay to install a fence around the property at a cost of market value. With a minimum of six bids. Simultaneously [T]enant shall provide and install landscaping as per the plan submitted to Lake Worth Beach.\n\nFollowing the Lease renewal, both Landlord and Tenant contacted fencing contractors to receive bids. Tenant retained a landscaper to clear vegetation from the premises in preparation for fence installation.\n\nLandlord and Tenant regularly communicated via text message regarding fence installation status, but no fence was ever installed. During one text message exchange, Landlord had expressed readiness to install the fence. Yet not only was Landlord not ready, but by the time Landlord sent this text message, Landlord had not even applied for a fencing permit. During another communication, which included Landlord’s counsel, Tenant was informed that the fence would be “started this week,” but Landlord had still not applied for the required fencing permit.\n\nAt no point within written communications between the parties or between their counsels did Tenant (1) declare the premises to be “wholly untenantable” due to lack of fencing; (2) specify that Landlord had twenty days to install the fence; and/or (3) express Tenant’s intent to withhold future rent until the fencing was in place—all statutory elements required to withhold rent pursuant to section 83.201, Florida Statutes (2020), the statute governing nonresidential tenancies. Nor does the Lease reference this statute or Tenant’s right to withhold rent. In fact, prior to the renewal, Tenant’s used car lot business operated for several years out of the unfenced leased premises.\n\nNearly a year after the renewed Lease commenced (the pre-termination period), Tenant sued Landlord for fraudulent misrepresentation, negligent misrepresentation, and breach of contract. Tenant sought to have the Lease “deemed void and enforceable” by alleging that Landlord fraudulently induced Tenant to enter the Lease and negligently misrepresented an intent to install fencing when Landlord had no intent of doing so. The Lease’s “Remedies” section permits a non-defaulting party to terminate and cancel the Lease in an “Event of Default,” defined as “failure of either party to perform any other covenant, condition, agreement or provision contained herein within fifteen (15) days after receipt by that party of written notice of such failure . . . .”\n\nWhen Tenant filed the underlying suit, Tenant was current on its rental payments under the Lease—paying Landlord a total of $87,862.50 during the pre-termination occupancy period. However, starting the following month, Tenant submitted no additional rental payments and withheld rent during the post-termination occupancy period. Consequently, Landlord counterclaimed for unpaid rent and other relief.\n\nBoth parties sought damages for their claims. Tenant’s breach claim sought vandalism and theft damages to its vehicle inventory stemming from Landlord’s failure to install fencing.\n\nTenant also sought return of the total $87,862.50 rent which it had paid during the pre-termination occupancy period.\n\nLandlord’s counterclaim sought compensation for unpaid rent, real estate taxes, and cleanup fees, and Landlord presented evidence of these expenditures at trial. The Lease specified that Tenant is responsible for payment of property taxes and keeping the exterior fronts, sidewalks, and rear of the leased premises “in a neat and orderly condition” and “free from debris and rubbish.”"
  },
  "outcome": {
   "amount": 87862.5,
   "amountIsTheRequestedAmount": true,
   "date": "2024-07-17",
   "description": "After a bench trial the court found the landlord fraudulently and negligently induced the renewal and breached the lease, let the tenant terminate without penalty, ordered the landlord to refund the $87,862.50 in rent the tenant paid before termination, excused the tenant's post-termination rent, denied the tenant's theft/vandalism damages as speculative, and denied the landlord's counterclaim. The Fourth DCA affirmed the inducement and breach findings but held the premises were not wholly untenantable under section 83.201 and the tenant ratified the lease, so the landlord was entitled to rent for both periods; it reversed the rent refund and remanded for property taxes, cleanup expenses and the security deposit.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "reversed",
   "finalAmount": 0,
   "finalNote": "Rent refund reversed; the tenant owes rent for both occupancy periods, with taxes, cleanup and the security deposit remanded."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "1700-market-v-common-grounds-2024",
  "source": {
   "caseName": "1700 Market Street Associates, L.P., SRI Eleven 1700 Market Holdings REIT, LLC, and 1700 Property Owner, LLC v. Common Grounds 1700 Market Street, LLC and Common Grounds Holdings, LLC",
   "court": "Superior Court of Pennsylvania (published, 2024 PA Super 63), on appeal from the Court of Common Pleas of Philadelphia County (No. 02451 May Term 2022)",
   "docket": "No. 1314 EDA 2023",
   "decided": "2024-04-01",
   "url": "https://www.pacourts.us/assets/opinions/Superior/out/J-A28029-23o.pdf",
   "excerptNote": "Verbatim from the opinion's background (lease terms, abatement, the ¶25(b) remedies clause, the default notices, the Municipal Court complaint and itemization, the breach-of-contract complaint) and the record facts recited in the discussion (the writ of possession, its notice, the alias writ and the return of keys), plus the landlord's appellate position that the tenant abandoned the premises. Removed: the opening paragraph (which states the award), the ¶25(c) confession-of-judgment clause (for length), footnotes 1-3 and markers, page headers, the paragraph stating the trial court's judgment and post-trial rulings, the questions presented, and all appellate analysis and holdings (including 'The record demonstrates that Appellants followed this procedure to legally evict Appellees')."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the landlord, 1700 Market Street Associates, L.P. and its affiliated owners, suing a coworking tenant on an eleven-year lease of two floors at 1700 Market Street, Philadelphia, for breach of the lease in the Philadelphia County Court of Common Pleas after the tenant stopped paying rent in March 2021; the landlord already obtained a Municipal Court judgment for possession and the tenant has returned the keys. The case is set for a non-jury trial on damages.",
   "documentText": "Appellants and Appellees entered into an Agreement of Lease (“Lease”) dated July 2, 2019, whereby Appellees leased 62,428 square feet of Appellants’ premises for use as a coworking space (“the premises”). The initial term of the Lease was eleven years. Lease, 7/1/19, ¶ 2(b). Appellee paid Appellants $2,500,000.00 for the security deposit and agreed to pay base monthly rent of $171,677.00, increasing by 2.5% each year. Id. ¶ 2(c), (d). Additionally, Appellees were responsible for “additional rent” defined as operating expenses and tax expenses. Id. at ¶ 7(a), (b). Under the terms of the Lease, Appellants provided Appellees $4,588,030.00 as a tenant improvement allowance, with the option for a supplemental allowance of $2,010,340.00. Id. at ¶ 55(a), (b). If Appellees opted for the supplemental allowance, it would be amortized into the monthly rent. Id.\n\nInitially, rent was abated for the first ten months of the first year. Id. at 2(c). On December 9, 2020, the parties executed a First Amendment to Agreement of Lease (“First Amendment”), which confirmed the Lease commenced on February 20, 2020, and extended the abatement period to January 20, 2021. First Amendment, 12/9/20, ¶ B, D, 2.\n\nThe Lease provided that an event of default of the Lease would include, inter alia, failure to pay rent timely. Lease, 7/1/19, ¶ 25(a)(1). If an event of default occurred, the Lease provided for the following remedies: 1. Landlord may terminate Tenant’s right to possession of the Premises at any time by written notice to Tenant. . . . Upon such termination in writing of Tenant’s right to possession of the Premises, this Lease shall terminate and Landlord shall be entitled to recover damages from Tenant as provided in any applicable existing or future Legal Requirement providing for recovery of damages for such breach, including but not limited to the following: (i) The reasonable cost of recovering the Premises; plus (ii) The reasonable cost of removing Tenant’s Alterations, trade fixtures and improvements; plus (iii) All unpaid rent due or earned hereunder prior to the date of termination, less the proceeds of any reletting or any rental received from subtenants prior to the date of termination . . .; plus (iv) The amount by which the rent which would be payable by Tenant hereunder, including Additional Rent . . . as reasonably estimated by Landlord, from the date of termination until the date of the award of damages. . .; plus (v) The amount by which the rent which would be payable by Tenant hereunder, including Additional Rent . . . as reasonably estimated by Landlord, for the remainder of the then term, after the date of the award of damages . . .; plus (vi) Such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law, including without limitation any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom.\n\n2. Landlord may continue this Lease in full force and effect and may enforce all of its rights and remedies under this Lease, including, but not limited to, the right to recover rent as it becomes due. After the occurrence of an Event of Default, Landlord may enter the Premises without terminating this Lease and sublet all or any part of the Premises for Tenant’s account to any person, for such term (which may be a period beyond the remaining term of the Lease), at such rents and on such other terms and conditions as Landlord deems advisable. * * * * 5. Landlord may cure the Event of Default at Tenant’s expense, it being understood that such performance shall not waive or cure the subject Event of Default. If Landlord pays any sums or incurs any expense in curing the Event of Default, Tenant shall reimburse Landlord upon demand for the amount of such payment or expense with interest at the Interest Rate from the date the sum is paid or the expense is incurred until Landlord is reimbursed by Tenant. Any amount due Landlord under this subsection shall constitute additional rent hereunder. Lease, 7/1/19, ¶ 25(b).\n\nOn March 9, 2021, Appellants sent a written notice of default to Appellees due to unpaid rent for March 2021. N.T., 1/9/23, at 30-31. Appellees were provided an opportunity to cure the default, and they did not. Id. at 31. A second notice of default was sent on February 3, 2022, and Appellees were again provided an opportunity to cure and they did not. Id. at 31-32.\n\nOn March 21, 2022, Appellants filed a Landlord and Tenant Complaint in Philadelphia Municipal Court, seeking possession of the premises and money judgment in the amount of $2,498,499.73, itemized as follows: Unpaid Rent March 2021–Feb 2022 (calculated at $207,302.52 / month) $2,487,630.24 Electric $7,502.24 Attorney’s Fees $1,500.00 Other $1,740.00 Court Costs $127.73 TOTAL $2,498,499.73 Landlord and Tenant Complaint, 3/21/22. On May 10, 2022, judgment was entered in favor of Appellants in the amount of $3,065,058.72, as well as judgment for possession of the premises. On May 26, 2022, Appellees filed an appeal to the Court of Common Pleas of Philadelphia County.\n\nThereafter, on June 9, 2022, Appellants filed a complaint for breach of contract seeking damages and possession of the premises. Appellants sought damages in the amount of $3,238,504.15 - $2,500,000.00 to replenish the security deposit and $783,504.15 in unpaid rent and additional rent – plus ongoing rent and additional rent as it accrues. Complaint, 6/9/22, ¶ 11. Appellants also requested judgment in ejection for possession of the premises. Id. at ¶ 15.\n\nOn May 31, 2022, Appellants obtained a writ of possession that was posted on the premises. Id. at 48-49. The writ of possession directed Appellees to vacate the premises within eleven days and warned that a failure to vacate would result in an alias writ of possession, “and all force necessary to eject you in order to execute the said Writ will be employed.” Id., Exhibit D-1 (emphasis added).\n\nThe writ also included the following notice: “Judgment was entered for non-payment of rent. If the full amount of the judgment plus court costs is paid on or prior to the eviction date, eviction shall not proceed.” Id. (emphasis added).\n\nOn June 16, 2022, Appellants obtained an alias writ of possession that was also posted on the premises. Id. at 49-50, 64. Scott Anderson, chief operating officer for Appellees, testified that when the alias writ of possession was posted, the landlord tenant officer could come any day to padlock the premises, thereby locking Appellees out. Id. at 64. As a result of the alias writ of possession, on or about June 30, 2022, Appellees returned the keys to the premises, and left all property inside. Id.\n\nAppellants argue that Appellees abandoned the premises, and no evidence was presented to show Appellees were evicted. Appellants’ Brief at 19. Thus, Appellants contend they are entitled to actual damages, defined as rent and additional rent due through the date of trial, less any applicable mitigation. Id. at 15-16."
  },
  "outcome": {
   "amount": 223000,
   "amountIsTheRequestedAmount": false,
   "date": "2024-04-01",
   "description": "After a non-jury trial the court entered judgment for the landlord for $223,000, the rent due through July 1, 2022 when it regained possession, holding the tenant had been evicted (not abandoned) so the landlord could not recover post-possession rent; it denied the landlord's post-trial claim to $2,149,435.75 in actual damages. The Superior Court affirmed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 223000,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "slyce-v-metropolitan-square-plaza-2025",
  "source": {
   "caseName": "Slyce Coal Fired Pizza Company v. Metropolitan Square Plaza, LLC (Laurie Barth and Brittany Barth-Niggemann, counterdefendants)",
   "court": "Appellate Court of Illinois, First District, First Division (2025 IL App (1st) 221279), on appeal from the Circuit Court of Cook County",
   "docket": "Nos. 1-22-1279 & 1-22-1868 (consolidated)",
   "decided": "2025-03-31",
   "url": "https://www.illinoiscourts.gov/resources/a6e89c4f-4ca1-4fbd-b6a1-6e70253d0bbb/file",
   "excerptNote": "Verbatim from the Background (paragraphs 4-6, 8, 12, 14-16, 18, 20-23, 25-26, 28-29, 36, 42, 44-45, 48-49), selected trial testimony (65, 73, 97-102) and Metro's closing and Slyce's posttrial arguments (112-113). Paragraph numbers, section headings, page headers, footnotes 1-3 (including the quoted section 14.5 text) and footnote markers removed. Removed: the introduction (which states the award and disposition), the remaining testimony paragraphs, the Trial Court Findings (114-124, which state the liability findings and the itemized $852,421.64 judgment), the fee proceedings, and all appellate analysis and holdings."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the landlord, Metropolitan Square Plaza, LLC, owner of a former restaurant building in Des Plaines, Illinois, on its counterclaim in the Circuit Court of Cook County against its pizza-restaurant tenant, Slyce Coal Fired Pizza Company, and the tenant's two individual guarantors, for breach of a ten-year lease and guaranty after the tenant stopped paying rent in June 2019 and abandoned the build-out; the tenant sued first, claiming the landlord breached the lease by delaying the floor work. The lease has liquidated-damages and attorney's-fee provisions. The case is set for a bench trial.",
   "documentText": "This is a breach of contract dispute arising from failed efforts to open a pizza restaurant in a building owned by Metro in Des Plaines, Illinois.\n\nSlyce operates a number of pizza restaurants in the Chicago area. Slyce is operated by Laurie Barth (Laurie) and her daughter, Brittany Barth-Niggemann (Brittany). Metro is a limited liability company that owns commercial properties. Metro’s chief executive officer is Jim Karzakis (Jim).\n\nIn 2017, Metro purchased the property at 1504 Miner Street in Des Plaines, which was formerly the site of a Leona’s restaurant. In March 2018, the parties discussed Slyce’s interest in opening a restaurant at the location.\n\nIn April 2018, Slyce and Metro entered into a letter of intent for Slyce to lease the premises from Metro. The parties discussed renovations to prepare the premises for operation as a restaurant by Slyce, with some work to be performed by Metro and some of it by Slyce. Among other work, Slyce planned for a massive pair of ovens (weighing over 6,500 pounds) to be installed on the premises.\n\nOn November 18, 2018, Metro submitted construction plans to the City of Des Plaines (City). Shortly thereafter, Jim wrote an e-mail to Brittany and Laurie: “If all goes well final permits should be issued by mid December.” In response, Laurie wrote “Sounds good and I hope the timeline holds as we NEED to be open for business no later than March/April 2019.”\n\nOn January 31, 2019, the parties entered into a lease for the premises with a term of “Ten (10) years, one (1) month.” The lease recited that its “Execution Date” was January 31, 2019. However, it also stated that its “Commencement Date” was “[t]he date of delivery of the Premises to Tenant.” The lease did not define the meaning of “delivery.”\n\nThe lease also specified that the “Rent Commencement Date” was March 1, 2019. The lease set forth the “Monthly Fixed Minimum Rent” for each month of the lease term.\n\nSection 2.7 of the lease was titled “LANDLORD’S AND TENANT’S WORK” and provided, in part: “On or before the Commencement Date, Landlord shall deliver to Tenant possession of the Premises in its then current, ‘as is, where is’ condition ***. *** No later than six (6) months following the Commencement Date Tenant shall complete, at its sole cost and expense, all work necessary to prepare the Premises for the conduct of Tenant’s Business therein (collectively, the ‘Tenant’s Work’), all to be completed in accordance with the description of Tenant’s Work set forth in Exhibit C attached hereto. In no event shall Tenant modify, change or otherwise alter or deviate from Tenant’s Work in any material manner *** without Landlord’s prior written consent.”\n\nElsewhere, exhibit C required that “Tenant shall within 30 days from the date of this Lease, *** prepare and deliver to Landlord, and Landlord’s architect for approval, two sets of complete plans and specifications (including all HVAC, plumbing, fire protection and electrical engineering as well as structural engineering, if applicable) covering all of Tenant’s work *** certified by a licensed and registered architect and, if applicable, a licensed and registered professional engineer.” Exhibit C also required that, within 60 days from the execution date, “Tenant shall *** apply for any and all necessary permits and approvals required to permit Tenant to perform Tenant’s Work.”\n\nWith respect to Metro’s obligations, section 2.7 provided that “Landlord shall renovate the Premises as provided for in Exhibit D (‘Landlord’s Work’).” Exhibit D stated that Landlord “shall perform all work, other than Tenant’s work set forth in Section 2.7 of the Lease to put the Premises in condition to permit Tenant to conduct its business therein.” Exhibit D also set forth a list of specific work items that were Metro’s responsibility.\n\nSection 2.7 contemplated that Metro and Slyce “shall be completing Landlord’s Work and Tenant’s Work *** at the Premises simultaneously.” They also “agree[d] to use their best efforts to jointly coordinate Landlord’s Work and Tenant’s Work to minimize delays in completing such work.” However, section 2.7 indicated that “Landlord’s Work” could be completed up to 10 days after “Tenant’s Work”: “Landlord shall (i) complete the carpentry work, as set forth on Plans, within 30 days after approval of Plans by City of Des Plaines and issuance of building permits, and (ii) use Landlord’s best efforts to complete Landlord’s Work promptly, but in any event, no more than ten (10) days after Tenant completes Tenant’s Work.”\n\nThe lease contained a number of provisions regarding Metro’s remedies in the event of a default. Section 14.5 contemplated that, in the event of default, Slyce shall “pay Landlord, at Landlord’s option *** such expenses as Landlord may incur in connection with the Event of Default *** and all reletting, including without limitation court costs, attorneys’ fees and costs, brokerage, and management fees and commissions, and all costs of preparing the Premises for reletting.” The lease also contemplated that Metro could seek either “liquidated damages,” “Lump- Sum Liquidated Damages,” or “Monthly Liquidated damages” under different formulas specified therein.\n\nIn conjunction with the lease, Brittany and Laurie executed a “Guaranty of Lease” in which each of them guaranteed “the complete and due performance by [Slyce] of all the terms” of the lease, including the payment of rent.\n\nOn February 19, 2019, Metro obtained a permit to execute the work reflected in the approved plans.\n\nAccording to Metro, it first learned on February 25, 2019, that Slyce wanted to bring the ovens through the front of the building. Dragan subsequently calculated that the ovens were too heavy to be brought over the existing wood floor. It was then determined that, to bring the ovens through the front of the building, the existing wood floor needed to be reinforced and replaced with steel and concrete. Metro took the lead in directing contractors to begin the floor replacement. However, the parties disputed who was ultimately responsible for the work, and they accused each other of failing to act diligently and “use their best efforts to jointly coordinate” their work, as required by section 2.7 of the lease.\n\nOn March 25, 2019, Laurie wrote to Jim: “The lease assumed delivery of the premises to tenant would be by March 1, 2019, which has not occurred.” Laurie suggested an “addendum to the lease leaving the actual ‘commencement date’ open until we have a firm date ***.” Jim forwarded Laurie’s e-mail to Metro’s real estate counsel (William Bazianos). The next day, Bazianos e-mailed Slyce’s counsel, stating that Metro had in fact delivered the premises and further stating that Slyce had failed to complete floor layout plans and hire contractors to complete Tenant’s Work. Metro’s position was that any delays “are the result of [Slyce’s] failure to move forward timely with Tenant’s Work.”\n\nOn April 9, 2019, Laurie again wrote to Jim: “We all know when Brittany and I signed the lease with a March 1, 2019 rent commencement date it was with the understanding the building would be turned over to us at that time to complete ‘Tenant’s Work.’ *** As of today this has not happened and the goal of opening for business by mid-May, 2019 appears to be impossible. It has always been communicated that we needed to be open by spring/summer of 2019 at the latest.” Laurie went on to state that Slyce had selected Joe Altmann as its “construction manager” instead of Dragan, citing “delays [Dragan] has caused getting the plan done and missing deadlines and meetings.”\n\nIt is undisputed that Slyce paid rent for the months of March, April, and May 2019. However, communications between Slyce and Metro broke down in June 2019. Slyce did not pay any more rent.\n\nMetro continued to work on the floor replacement. Concrete for the floor was poured on June 22, 2019.\n\nOn July 26, 2019, Slyce commenced this litigation by filing a complaint against Metro containing several counts, including breach of contract and unjust enrichment. After Metro filed a motion to dismiss, the trial court dismissed all counts except Slyce’s claims for breach of contract and unjust enrichment.\n\nOn February 4, 2020, Metro filed an answer and a counterclaim with two counts. The first count asserted breach of contract, insofar as Slyce breached its lease obligations by, inter alia, failing to pay rent, failing to provide Metro “two sets of complete plans and specifications” within 30 days from the date of the lease as called for by exhibit C, and failing to timely “apply for any and all necessary permits” for Tenant’s Work, as required by exhibit C. The second count was directed against Laurie and Brittany, as Slyce’s guarantors under the lease.\n\nIn its opening argument, Slyce’s counsel argued Metro did not use its best efforts to complete its work promptly, especially the floor replacement. Counsel argued that Slyce could not do the “Tenant’s Work” at the property because Metro created “a hole in the ground” inside the premises. Slyce argued that Metro took on the responsibility for the floor replacement, and Slyce relied on Metro to complete the work.\n\nIn Metro’s opening, counsel pointed out that Slyce stopped paying rent after May 2019. Metro argued that Slyce caused it to invest over $100,000 in construction costs before Slyce “walked away” from the project. Metro argued that the floor replacement work was necessitated by Slyce’s decision to bring the ovens through the front of the building, which was not communicated to Metro until after the building plans were already approved. Metro’s counsel emphasized that, under the lease, Slyce was required to complete its work six months after the commencement date, whereas Metro had another 10 days to complete “Landlord’s Work.” Counsel argued that Metro was “trying to coordinate” the work but Slyce did not make similar efforts.\n\nBrittany was also asked about the April 9, 2019, e-mail from Laurie to Jim referencing delays and questioning Slyce’s obligation to pay rent. Brittany testified that Slyce was losing revenue by not being able to open by May 2019. Brittany elsewhere stated her understanding was that Slyce was not supposed to “be paying rent until we were opened.” Slyce began paying rent in March, “assuming that the building would have been turned over to us by then even though we had originally negotiated not paying rent *** until we were opened.” When asked why Slyce stopped paying rent after May 2019, Brittany said: “There was still a hole in the floor and it just didn’t look like we were getting anywhere.”\n\nAlso on cross-examination, Brittany acknowledged that Slyce agreed to a rent commencement date of March 1, 2019. She stated it was “originally discussed” that Slyce would not pay rent until the restaurant opened, but she acknowledged this was not a lease term. Brittany acknowledged there was a breach when Slyce stopped paying rent.\n\nJim testified at length about Metro’s claimed damages. He testified that Slyce’s abandonment of the project “devastated” the value of the premises, which became a “gutted shell” due to Metro’s efforts to meet Slyce’s custom requirements.\n\nMetro’s counsel asked Jim about section 14.5 of the lease, which provides that the landlord may recover costs incurred as a result of a default as well as liquidated damages.\n\nJim testified that as of April 30, 2022, the sum of outstanding rent, taxes, and utilities was $365,255. Jim also testified that Metro paid $135,113.88 in construction expenses in efforts to customize the space for Slyce.\n\nJim additionally testified that Metro sought $327,626 for “Lump Sum Liquidated Damages,” using the calculation set forth in section 13.2 of the lease. That provision defines “Lump Sum Liquidated Damages” to mean: “the difference between: the sum of the annual Fixed Minimum Rent, the Tax Rent payable in the year immediately preceding such termination, and Utility Charges payable in the last preceding Adjustment Year, all multiplied by the number of years and fraction of a year then constituting the unexpired Term, discounted at the rate of four percent (4%) per annum to present worth, minus the fair and reasonable annual rental value of the Premises for such period, also discounted at the rate of four percent (4%) per annum to present worth.”\n\nJim testified that Metro’s calculation under this formula resulted in $327,626. Specifically, the sum of future rent through the end of the lease (discounted to today’s dollars) was $744,270. From that number, Metro subtracted its estimate of reasonable rent for the remainder of the lease term, which was $550,630. That is, $744,270 minus $550,630 resulted in $327,626 of “Lump Sum Liquidated Damages.”\n\nJim further testified that Metro had unsuccessfully attempted to relet the property since September 2019, despite hiring two brokers. Metro had an agreement with a broker calling for a 4% brokerage fee. Metro “estimated $700,000” for remaining rent under the lease period, so Jim expected Metro would have to pay $28,000 for a brokerage commission.\n\nMetro’s counsel argued that Slyce was responsible for getting the ovens into the building but had “no plan” how to do so. After Dragan calculated that the existing floor would not support moving the ovens through the front, Slyce was “stuck” because the building had to be modified by putting in a concrete floor. Counsel argued that Metro could not be blamed for delays from the floor replacement work, because as soon as Jim learned about the need for it, he acted to engage contractors for the work. Metro argued Slyce “permitted [Jim] to take control” but abandoned the project after Metro incurred $135,000 in construction expenses. As to Metro’s counterclaim, counsel argued that Slyce breached the lease in several ways, including by failing to pay rent and failing to obtain completed plans and necessary permits.\n\nIn Slyce’s posttrial submission, it argued that it proved Metro breached the lease by failing to use its best efforts to jointly coordinate its work with Slyce. As support, it cited Slyce’s March 2019 e-mail requesting an addendum to the lease, other Slyce e-mails from April 2019, and Metro’s alleged failure to coordinate with Slyce to obtain a new permit from the City for the steel and concrete work. Elsewhere, Slyce’s posttrial submission argued that, if the court found in favor of Metro on its counterclaim, Metro was not entitled to liquidated damages, as they were penal in nature. Slyce also disputed whether Metro could recover the $28,000 it sought in brokerage fees, because they were a speculative future expense."
  },
  "outcome": {
   "amount": 852421.64,
   "amountIsTheRequestedAmount": false,
   "date": "2025-03-31",
   "description": "After a bench trial the court rejected the tenant's breach claim (and dismissed unjust enrichment), found the tenant and guarantors liable, and entered judgment for the landlord of $852,421.64: $365,255.76 rent, taxes and utilities through April 30, 2022; $111,910.38 construction expenses; $327,626.48 lump-sum liquidated damages; $28,000 brokerage fees; and $19,629.02 prejudgment interest. It later awarded $202,034.79 in attorney fees and costs without an evidentiary hearing. The Appellate Court affirmed liability and damages except the $28,000 brokerage fee, which it reversed, and reversed and remanded the fee award for an evidentiary hearing.",
   "attorneysFeesAtTrial": 202034.79,
   "attorneysFeesOnAppeal": "reversed and remanded for evidentiary hearing",
   "appellateChange": "modified",
   "finalAmount": 824421.64,
   "finalNote": "Affirmed except the $28,000 brokerage-fee component, which was reversed; fee award remanded."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "holcomb-dunbar-v-mad-hatter-2022",
  "source": {
   "caseName": "Holcomb, Dunbar, Watts, Best, Masters & Golmon, P.A. f/k/a Holcomb Dunbar, P.A. v. 400 South Lamar Oxford Mad Hatter Partners, LLC and Blake Tartt III",
   "court": "Supreme Court of Mississippi (en banc, on writ of certiorari to the Court of Appeals), on appeal from the Lafayette County Circuit Court",
   "docket": "No. 2019-CT-01702-SCT",
   "decided": "2022-03-17",
   "url": "https://courts.ms.gov/images/Opinions/CO160186.pdf",
   "excerptNote": "Verbatim from paragraphs 1, 2 (first two sentences only), 3-5, 6 (first two sentences only), the tenant's arguments and the quoted lease paragraph 21 in paragraphs 9-10, and the tenant's material-breach allegations and related lease facts in paragraphs 16-17 and 19-20. Page numbers removed. Removed: every sentence stating the summary-judgment ruling or the $133,900 award, the jury verdict on the counterclaims, the Court of Appeals' and Supreme Court's holdings, the mitigation-waiver discussion, and the motion-to-quash and motion-to-amend rulings."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the landlord, 400 South Lamar Oxford Mad Hatter Partners, LLC, suing its former office tenant, the Holcomb Dunbar law firm, in Lafayette County, Mississippi Circuit Court for ejectment and unpaid rent through the end of a three-year renewal term after the firm moved out early and stopped paying rent; the firm has counterclaimed that the landlord materially breached the lease and the duty of good faith. The landlord has moved for summary judgment on its rent claim.",
   "documentText": "This is a landlord/tenant dispute regarding a commercial lease of an office space in Oxford, Mississippi. Holcomb, Dunbar, Watts, Best, Masters & Golmon, P.A. (“Holcomb Dunbar”), was the tenant and 400 South Lamar Mad Hatter Partners, LLC (“Mad Hatter”), was the successor landlord.\n\nMad Hatter sued Holcomb Dunbar for breach of the lease due to its failure to pay rent for the remaining eighteen months of its three-year lease. Mad Hatter filed a “Complaint in Ejectment, Breach of Contract and Associated Damages” in the Lafayette County Circuit Court.\n\nHolcomb Dunbar entered into a nine-year commercial lease with Greenville Compress Co. in November 2009. The lease was segmented into three three-year options. Holcomb Dunbar renewed this lease in November 2012 for an additional three-year term to last through December 31, 2015. Greenville Compress Co. sold this property to Mad Hatter. Bradley Best of Holcomb Dunbar met with the principal of Mad Hatter, Blake Tartt, in September 2015 to discuss the next lease renewal. At this meeting, Best informed Tartt that Holcomb Dunbar was in the process of constructing a new building for its office in a nearby development called Oxford Commons. But Holcomb Dunbar was not certain the exact date it would be able to move into the new space. Tartt then offered Best a shorter-term lease on the property at a higher rate. However, the parties ultimately agreed to renew the final three- year option and Holcomb Dunbar was to move out as soon as the construction of the new building was finished. As a result, the lease was renewed in October 2015 with a December 2018 expiration term. During this meeting, Tartt told Best that he would help to find new tenants to take over. However, no provision in the lease required Mad Hatter to locate a subtenant for Holcomb Dunbar.\n\nOn August 3, 2016, Holcomb Dunbar corresponded with Tartt reminding him that it would be moving out in November 2016 and asked if it would need to find a replacement tenant, but Tartt did not respond. Holcomb Dunbar vacated the property in November 2016 and moved to Oxford Commons. In March 2017, Holcomb Dunbar gave Mad Hatter its key to the premises, and this fact was admitted by Mad Hatter in its answer. The last rental payment Holcomb Dunbar made under the lease was for April 2017. On April 11, 2017, Best secretly recorded a telephone conversation with Tartt about his progress in finding a replacement tenant for Holcomb Dunbar’s remaining lease term. On June 29, 2017 and July 13, 2017, Mad Hatter sent notices of default to Holcomb Dunbar. On July 20, 2017, Best sent Tartt a notice of alleged breach of the lease that stated, “Holcomb Dunbar considers that its obligations under the lease of Suite A to be fulfilled and concluded” because Mad Hatter “breached its obligations under the lease and its duty to conduct itself in good faith and to deal fairly with the firm in numerous and repeated respects.” Mad Hatter responded on July 21, 2017, by sending Holcomb Dunbar a “Three-day Notice” letter. This letter threatened a lawsuit for legal possession of the premises and past-due rent if the firm did not pay its past due rent of $19,500 and related fees in three days. Mad Hatter claimed that it never forfeited or terminated the lease.\n\nIn September 2017, Mad Hatter then filed an “Amended Complaint in Ejectment, Breach of Contract and Associated Damages,” requesting possession of the premises and damages, a writ of possession, $32,000 in past due rent and fees and accelerated rent through the end of the lease term. Holcomb Dunbar then filed an answer and counterclaim.\n\nA trial court hearing was then held on Mad Hatter’s motion for summary judgment and motion to quash and on Holcomb Dunbar’s motion for partial summary judgment and motion to amend. In its summary-judgment motion, Mad Hatter claimed twenty months of rent, from May 2017 to December 2018 at $6,500 a month, plus late fees.\n\nHolcomb Dunbar asserts that the trial court should have granted its partial-summary- judgment motion because, under Mississippi law, if a landlord seeks possession and receives possession, it cannot also claim rent thereafter. Without giving Mad Hatter notice, Holcomb Dunbar vacated the premises in November 2016 and stopped paying rent after April 2017. Mad Hatter then sent notice of default letters in June and July 2017 that cite paragraph 21 of the lease which gave Mad Hatter the option to forfeit the lease.\n\nParagraph 21 of the lease states: (21) DEFAULT OF RENT, ETC. All covenants and agreements herein made and obligations assumed are to be construed also as conditions and these presents are upon the express condition that if Lessee should fail to pay when due any one of the aforesaid installments of rent, or should fail to perform or observe any of the covenants, agreements or obligations herein made or assumed by Lessee, then and thenceforth, in any of said events, this Lease may be forfeited and thereby become null and void at the option of the Lessor, and said Lessor may immediately, or any time after the breach of any said covenants, re-enter said Premises and building, or any part thereof in the name of the whole, and repossess and have the same as of Lessor’s former estate and remove therefrom all goods and chattels not thereto properly belonging and expel said Lessee and all other persons who may be in possession of said Premises and building. Prior to exercising the rights as described in this provision, the Lessor shall be required to provide a written notice of default to the Lessee and a 30-day opportunity to cure all alleged deficiencies.\n\nHolcomb Dunbar argues that because Mad Hatter sought and received possession of the property, Holcomb Dunbar is not obligated to pay rent after surrendering possession of the property to Mad Hatter. According to Holcomb Dunbar, Mad Hatter could not claim rent beyond July 29, which was thirty days after Mad Hatter’s demand for possession.\n\nHolcomb Dunbar argues that there is a genuine issue of material fact regarding Mad Hatter’s alleged “long train of abuses” and that, taken together, they constitute breach of the lease and excused them from any obligations for past- due rent.\n\nHolcomb Dunbar asserts that Mad Hatter breached this duty along with specific provisions of the lease agreement. Holcomb Dunbar further alleged that Mad Hatter “commandeered all interest in the property,” while making assurances that it would “absolutely” share all of the potential leads with the firm, but it never actually shared those leads. The record reflects that Tartt did encounter many potential leads but claimed that none of them worked out for a variety of reasons. Holcomb Dunbar’s allegation is that Mad Hatter turned down these leads on purpose to make more money off of the property than it would have if Holcomb Dunbar would have found a subtenant. This belief rests on the fact that Holcomb Dunbar moved out with twenty-five months left on its lease at $13 a square foot, which was below the market rate. Holcomb Dunbar claims that this meant Mad Hatter lacked incentive to assist the firm in finding a subtenant because it would be able to make more money if it found a tenant on its own. Holcomb Dunbar also claimed that Mad Hatter could “have its cake and eat it too” by not actively searching for a subtenant and continuing to make Holcomb Dunbar pay rent after it moved out.\n\nThe lease’s paragraph 15 prohibits tenants from “any advertising purposes whatsoever” on the exterior of the premises. Further, Mad Hatter did allow Holcomb Dunbar to place a sign in the window near the firm’s entrance at the rear of the building.\n\nHolcomb Dunbar also alleged Mad Hatter breached at least four specific provisions of the lease which included quiet possession (paragraph 8), advertising (paragraph 15), subletting (paragraph 23), and parking spaces (paragraph 33)."
  },
  "outcome": {
   "amount": 133900,
   "amountIsTheRequestedAmount": true,
   "date": "2022-03-17",
   "description": "The trial court granted the landlord summary judgment for all twenty months of unpaid rent (May 2017 through December 2018 at $6,500 a month) plus late fees, $133,900 in total, the full amount claimed in the motion; the tenant's remaining counterclaims went to a jury, which found against it. The Mississippi Court of Appeals affirmed (May 18, 2021) and the Supreme Court of Mississippi, on certiorari, affirmed on March 17, 2022, holding the default letters did not terminate the lease, the election-of-remedies and mitigation arguments were waived, and the alleged breaches were immaterial.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 133900,
   "finalNote": "Affirmed by the Court of Appeals and, on certiorari, by the Supreme Court of Mississippi."
  },
  "expectedRole": "Landlord",
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "epochal-v-lf-encinitas-2024",
  "source": {
   "caseName": "Epochal Enterprises, Inc., dba Divine Orchids v. LF Encinitas Properties, LLC and Leichtag Foundation",
   "court": "California Court of Appeal, Fourth Appellate District, Division One (certified for publication; modified Jan. 31, 2024 with no change in judgment), on appeal from San Diego County Superior Court (No. 37-2018-00027797-CU-CO-NC)",
   "docket": "D079905",
   "decided": "2024-01-12",
   "url": "https://www.courts.ca.gov/opinions/archive/D079905.PDF",
   "excerptNote": "Verbatim from the Factual and Procedural Background parts A-D (through 'Defendants filed a cross-complaint against plaintiff for breach of lease.') and the damages testimony in part III.A (Brinig's three lost-profit methods, Mr. Le's testimony, and the defense expert's criticisms). Removed: the introduction; footnote 2 (the lease's as-is clause) and footnote markers; inline page numbers; the jury's special-verdict findings and damages, the judgment, the JNOV proceedings, the jury instructions and verdict form, the parties' appellate arguments (including plaintiff's characterization of the award), and all appellate analysis and holdings. The Jan. 31, 2024 modification changed one sentence of the introduction, which is not excerpted."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the tenant, Epochal Enterprises, Inc. (Divine Orchids), an orchid grower that leased a greenhouse range from LF Encinitas Properties, LLC and the Leichtag Foundation, in its San Diego County Superior Court suit for premises liability, negligence, misrepresentation and related claims over undisclosed asbestos that led to the county quarantining the greenhouse and the loss of the orchid inventory. The landlord relies on the lease's indemnity and limitation-of-liability clauses and has cross-complained for breach of lease. The case is set for a jury trial.",
   "documentText": "In 2012, defendants purchased real property containing dilapidated commercial greenhouses “as is,” knowing the greenhouses contained asbestos and lead paint. The greenhouses were built in the 1960’s and defendants planned to modernize them. The property contains multiple structures, each one of which is called a “range.” Some of the ranges are greenhouses. Defendants were informed about asbestos and lead in the greenhouses, that Range 15 had friable asbestos coming from the joints of the heating system, and inert asbestos existed in certain portions of the mechanics of the other greenhouses. During the escrow process, defendants cleared Range 15 of friable asbestos. Other ranges held inert asbestos that to defendants’ knowledge did not pose a threat to people or property. Defendants hired a firm to conduct an environmental investigation, which recommended that defendants adopt an operation and management plan with respect to asbestos on the property. Defendants planned to remediate ranges as they became empty but they failed to do that when Range 9 became vacant. Plaintiff is owned and operated by Victor Le and his wife Ying Lee (the principals). In 2015, plaintiff earned approximately $478,000 in gross sales. Plaintiff owns two greenhouses in Fallbrook totaling 30,000 square feet, and an 8,000 square foot greenhouse in Encinitas that is on the same property as the principals’ residence. Defendants’ employee Dempsey Sawyer showed Range 9 to the principals. Sawyer knew Range 9 potentially contained asbestos and lead - based paint but did not believe that any asbestos had been released. Sawyer never discussed lead or asbestos contamination with the principals. He believed he did not need to disclose the existence of asbestos to plaintiff because the general language in the lease regarding hazardous materials eliminated the need to inform plaintiff specifically about asbestos or lead. Sawyer knew that exposing inert asbestos to the elements could make it friable but did not inform plaintiff about this concern because he knew plaintiff would be rebuilding the greenhouse and the asbestos would then not be exposed to the elements. Mr. Le had never heard of asbestos and plaintiff never received written information from defendants about asbestos or lead paint before entering the lease.\n\nIn 2014, Mr. Le, on behalf of plaintiff, signed an agreement with defendants to lease Range 9 from defendants “as-is” for five years at eight cents a square foot.\n\nDefendants’ law firm drafted the lease. Plaintiff did not have a lawyer or anyone else review it. Mr. Le did not read the lease except for the lease price and term, and Mrs. Lee did not read the lease at all. The lease contained an indemnification provision shielding defendants from personal injury or property damage liability for property connected with plaintiff’s use of the premises, absent gross negligence or intentional misconduct by defendants: “10.1 Indemnification: This Lease is made upon the express condition that Landlord shall be free from all liability and claims for damages by reason of any injury to any person or persons, including the agents and employees of Tenant, or property of any kind whatsoever and to whomsoever belonging, including Tenant’s property, from any cause or causes whatsoever, in, upon or in any way connected with the Premises or its use or occupancy during the Term, excepting only liability caused by the gross negligence or intentional misconduct of Landlord. Tenant shall indemnify and hold Landlord harmless from all such liability, loss, cost, expense, and obligations, including reasonable attorneys’ fees, on account or arising out of any cause in, on or about the Premises during the Term and/or any acts, omissions or negligence of Tenant or of any person claiming by, through or under Tenant, or of the contractors, agents, employees, licensees or invitees of tenant or any such person in, on or about the Project, however occurring except as may be caused by the gross negligence or intentional misconduct of Landlord.” (Italics added.) Plaintiff also agreed to a provision limiting defendants’ liability: “10.6 Limitation of Liability: Neither Landlord nor any affiliate of Landlord nor their respective members, principals, beneficiaries, partners, trustees, shareholders, directors, officers, employees, contractors or agents shall have any personal liability with respect to any of the provisions of the Lease or the Premises. If Landlord is in breach or default with respect to Landlord’s obligations under the Lease, Tenant shall look solely to the equity interest of Landlord in the Project for the satisfaction of Tenant’s remedies or judgments. No other real, personal, or mixed property of any Landlord, wherever situated, shall be subject to levy to satisfy such judgment. Upon any transfer of Landlord’s interest in this Lease or in the Project, the transferring Landlord shall have no liability or obligation for matters arising under this Lease from and after the date of such Transfer. Landlord shall in no event be liable for any consequential damages or loss of business or profits and Tenant hereby waives any and all claims for any such damages.” (Italics added.)\n\nAfter plaintiff moved into Range 9, Mr. Le started renovating the property. Sawyer knew plaintiff planned renovation of Range 9 would expose asbestos to the elements and this “concern[ed]” him. He does not recall ever expressing this concern to Mr. Le. C. The Storm and Unlawful Detainer Action In March or April 2016, a storm damaged Range 9. After the storm, Mr. Le saw a steam pipe spraying inside the greenhouse and informed defendants. He was told to leave the door open so defendants could send people to clean the room. The lease agreement stated plaintiff was responsible for any repairs to the property. Nonetheless, Sawyer had a company that did asbestos remediation do the repair because the corner of the valve had asbestos and he was concerned this might be a problem. The company defendants hired to make the repair never tested for asbestos but treated the repair as “an asbestos job.” Sawyer never informed plaintiff about his concern that asbestos might have been released because the pipe was in an area of the leased premises open to the air. Defendants believed they had no affirmative obligation to notify plaintiff of the release or potential release of asbestos and claimed the company it hired to do the remediation work could determine whether to advise plaintiff. Plaintiff fell behind in rent payments, and in May 2016, defendants sent a notice to quit or pay rent. In December 2016, defendants filed an unlawful detainer action against plaintiff. In the meantime, after the repairs on the pipe, Mr. Le noticed some debris remained. Becoming concerned that the debris might contain asbestos, he sent samples to a laboratory for testing. Lab reports dated February and March 2017, revealed asbestos and lead paint on the insulation pipes running through Range 9. In March 2017, the County of San Diego quarantined Range 9 based on friable asbestos in the air and on the ground. Friable asbestos is more of a health risk because it could be released further. In April 2017, defendants obtained a default judgment in the unlawful detainer action. That same month, as part of the abatement plan, defendants had the orchid plants and soils HEPA vacuumed. After the vacuuming, samples of the soil showed no asbestos. In May 2017, defendants notified plaintiff to retrieve its orchids, but plaintiff did not do so and abandoned its inventory.\n\nIn June 2018, plaintiff filed this action based on defendants’ failure to disclose asbestos and lead paint in Range 9. It sought economic damages for its orchid inventory. The complaint alleged seven causes of action: (1) premises liability; (2) negligence; (3) intentional misrepresentation; (4) breach of contract rescission based on fraud; (5) unjust enrichment; (6) breach of implied covenant of good faith and fair dealing; and (7) unfair business practices. Defendants filed a cross-complaint against plaintiff for breach of lease.\n\nBrian Brinig, a certified public accountant who specializes in forensic accounting, testified regarding plaintiff’s alleged economic losses due to the loss of its orchid inventory in March 2017. He determined plaintiff generated approximately $478,000 in gross sales income in 2015 and $485,000 in 2016. Brinig assumed that in 2017, 2018, and 2019, the business would have produced the same level of revenue it produced in the year prior to the inventory loss. He averaged the revenue amount for the prior two years and estimated $480,000 in gross sales for these years. Based on prior sales and profits, Brinig subtracted 35 percent from lost revenue to calculate lost profit. That resulted in net lost profit of $83,000 in 2017, $165,000 in 2018, and $121,000 in 2019.” Total net lost profit for “all three of those years is $368,933” under Brinig’s preferred calculation method. As a second method of calculating lost profits, Brinig multiplied the number of plants lost by the value of each plant. In March 2017, plaintiff had approximately 16,200 orchid plants growing at Range 9 valued at $18.50 to $22.50 each, of which, 50 percent were in bloom and ready for sale. Mr. Le lacked inventory records confirming this amount and indicated there may have only been 12,000 plants at Range 9. Brinig testified that if plaintiff had 12,000 plants at an average of $20 per plant, plaintiff lost $240,000. If plaintiff had 16,200 plants, then it lost $324,000. Under a third approach, Brinig took the lost profit for each year “and you add that calculation of lost profit back to the adjusted net income for the business in each of the years 2017, ’18, and ’19.” The adjusted net income in 2016 was $116,000, in 2017 it was around $50,000, or $133,000 when added to Brinig’s estimate of the loss for that year ($82,000). In 2018 the adjusted net income was $135,000 and $161,000 for 2019. Those three numbers add up to over $400,000. Mr. Le claimed plaintiff’s losses exceeded what Brinig calculated because Brinig’s method only reflected profits and losses from plaintiff’s tax returns. Additionally, plaintiff sold orchid stems, which can take eight months or so to fully bloom. Mr. Le estimated that about 60 percent of the plants cultivated get used multiple times for cut stems. One cut stem, which a single plant can produce multiple times, sells for $9 to $12 per stem. Additionally, plaintiff had buyers for the asbestos-contaminated orchids and had to replace these plants at almost triple the cost which also impacted plaintiff’s net profit. Defendants also presented a damages expert who reviewed Brinig’s work product and testimony. Defendants’ expert opined that Brinig’s calculations were unsupported mathematical exercises that did not reflect plaintiff’s actual damages. He also opined that Brinig’s damage calculations were not consistent with what he believed were plaintiff’s potential losses. Finally, he concluded Brinig had not received “sufficient and accurate accounting and financial information” to support his opinions regarding plaintiff’s damages. Defendants’ expert criticized Brinig for not taking into account that some of the lost plants were intended to be retained for cut stems. As an example, if 50 percent of the lost plants were intended to be retained, then the total lost sales would be about $125,000. Defendants’ expert also criticized Brinig for not analyzing whether plaintiff could have mitigated its damages."
  },
  "outcome": {
   "amount": 222000,
   "amountIsTheRequestedAmount": false,
   "date": "2024-01-12",
   "description": "The jury found the landlord liable for premises liability and negligence (no liability for concealment), awarded the tenant $144,300 in lost profits and $77,700 in other past economic loss ($222,000), and found the tenant's unpaid rent caused the landlord no harm on the cross-complaint. The trial court then granted JNOV for the landlord under the lease's limitation-of-liability clause. The Court of Appeal reversed the JNOV (the clause is invalid under Civil Code section 1668 as applied to the Health and Safety Code disclosure violations, and the indemnity clause does not reach gross negligence), affirmed the denial of the landlord's partial JNOV on the $77,700, and remanded.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "reversed JNOV; verdict reinstated",
   "finalAmount": 222000,
   "finalNote": "JNOV reversed and the $222,000 verdict upheld against the damages challenge; on remand the landlord may still ask the trial court to rule on its alternative new-trial motion, which had been denied as moot."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "griffith-v-hemphill-2022",
  "source": {
   "caseName": "David Griffith v. Roger Hemphill and Donald Davis",
   "court": "Supreme Court of Alaska, on appeal from the Superior Court, Third Judicial District, Anchorage (No. 3AN-19-04477 CI)",
   "docket": "No. S-18041, Opinion No. 7634",
   "decided": "2022-12-16",
   "url": "https://storage.courtlistener.com/pdf/2022/12/16/david_griffith_v._roger_hemphill_and_donald_davis.pdf",
   "excerptNote": "Verbatim from Part II.A (Facts) and Part II.B.1 (pleadings and the tenants' Rule 68 offer of judgment), the first two sentences of Part II.B.2 (dismissal of the specific-performance counterclaim), and three sentences of Hemphill's damages testimony recited in Part IV.B. Removed: the introduction; footnotes 1-5 and markers; page numbers; the rest of the summary-judgment order; the superior court's findings, damages award, dismissal rulings and attorney's-fee award; the appellate arguments and all holdings. Source is the court's slip opinion as archived by CourtListener (the Alaska courts' own document link is session-tokenized)."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the tenants, Roger Hemphill and Donald Davis, who ran an automotive repair business in a commercial building leased from David Griffith, on their counterclaims in Anchorage Superior Court for breach of the lease's repair-and-maintenance and insurance covenants, good faith and fair dealing, and unjust enrichment. The landlord sued first for eviction and roof-failure damages and alleges an oral triple-net lease. The case is set for a bench trial.",
   "documentText": "In November 2008 David Griffith entered into an agreement with Roger Hemphill and Donald Davis to lease a commercial building that Griffith owned. In a separate agreement, Griffith sold his automotive repair business to Hemphill and Davis, who operated the business out of the leased property. The lease was for a ten-year term. Among other things, the lease required Griffith to “maintain a policy of fire and other casualty insurance upon the premises” and to “maintain the premises . . . in reasonable good order and condition.” It gave Hemphill and Davis the option, at the end of the lease term, to hold over under specified terms or to purchase the property for fair market value.\n\nIn 2010 the roof of the building began leaking water, damaging Hemphill and Davis’s tire balancer. Hemphill and Davis asked Griffith to repair the roof and pay for the balancer. Griffith refused to pay for the roof repair or balancer replacement and told them the roof only needed a patch, which they could perform themselves. The record does not indicate whether Hemphill and Davis performed this repair, but their attorney represented at trial that they did, and Griffith did not contradict that assertion.\n\nIn 2016 Hemphill and Davis discovered that the roof had failed in several places due to water accumulation; two scuppers had not been maintained, causing a clog. In either August or November of that year, the parties met to discuss the damage and repairs. At that meeting Hemphill and Davis maintained that the lease required Griffith to repair the damage. Griffith refused to repair the damage and claimed the lease was “fraudulent,” threatening Hemphill and Davis with eviction, revocation of their option to purchase, and a lawsuit. Hemphill and Davis eventually repaired the damage themselves.\n\nIn November 2018 — the last month of their lease term — Hemphill and Davis sent written notice to Griffith attempting to exercise their option to purchase. Griffith did not sell the property to Hemphill and Davis. After the lease term expired, Hemphill and Davis held over on the property. Griffith then brought a forcible entry and detainer (FED) action against Hemphill and Davis in district court in January 2019. Hemphill and Davis ended their holdover in April 2019 and vacated the property.\n\nGriffith’s complaint sought to evict Hemphill and Davis from the property and claimed $25,000 in damages due to the roof failure. In February 2019 Hemphill and Davis answered the complaint, alleging that Griffith had breached the lease by refusing to maintain and repair the property and by refusing to honor their option to purchase. Hemphill and Davis counterclaimed for over $100,000 in damages, pursuing claims of breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and specific performance. The case was then removed to superior court.\n\nIn April 2019 — less than a month after the parties agreed to exchange initial disclosures — Hemphill and Davis served Griffith with an offer of judgment pursuant to Alaska Civil Rule 68. Hemphill and Davis offered judgment to be entered in their favor in the amount of $20,000, “inclusive of costs, attorney’s fees, and interest, and in complete satisfaction of all claims asserted by all parties.” Griffith did not respond to the offer of judgment. Griffith amended his complaint for FED to add three other claims: fraudulent misrepresentation, promissory estoppel, and breach of implied-in-fact contract. Griffith alleged that the written lease was fraudulent and that the parties had instead negotiated and followed an oral implied-in-fact “triple-net lease” requiring Hemphill and Davis to maintain the property and to pay for Griffith’s property taxes and insurance.\n\nGriffith moved for summary judgment on Hemphill and Davis’s specific performance counterclaim. Hemphill and Davis moved for voluntary dismissal of that claim, which the superior court granted.\n\nHemphill — who was familiar with the business’s finances — testified that he and Davis spent $6,500 to repair the wall that had suffered water damage from the roof failure. Hemphill also testified that he and Davis spent $11,450 in painting costs to finish those repairs, itemizing the costs of wood trim, supplies, paint, a paint sprayer, scaffolding, and labor. Finally, Hemphill testified that he and Davis paid $1,173 for property insurance in 2016 and $242 in 2017."
  },
  "outcome": {
   "amount": 19330,
   "amountIsTheRequestedAmount": false,
   "date": "2022-12-16",
   "description": "After a two-day bench trial the court held the written lease governed, found the landlord breached its insurance and maintenance covenants, and awarded the tenants $19,330 in damages (2016-2017 insurance premiums and the 2016 roof-failure repair and painting costs; earlier claims were time-barred), dismissed the landlord's claims, and awarded the tenants $59,604.75 in attorney's fees under Civil Rule 68, for a final judgment of $85,895.62. The Alaska Supreme Court affirmed on December 16, 2022.",
   "attorneysFeesAtTrial": 59604.75,
   "attorneysFeesOnAppeal": "affirmed",
   "appellateChange": "affirmed",
   "finalAmount": 19330,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Tenant",
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "lemartec-v-east-coast-metal-2024",
  "source": {
   "caseName": "Lemartec Corporation, Tellus Products, LLC, Philadelphia Indemnity Insurance Company and Suretec Insurance Company v. East Coast Metal Structures Corp.",
   "court": "Florida Fourth District Court of Appeal, on appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County (L.T. No. 50-2017-CA-010645-XXXX-MB)",
   "docket": "No. 4D2023-0601",
   "decided": "2024-05-15",
   "url": "https://storage.courtlistener.com/pdf/2024/05/15/lemartec_corporation_v._east_coast_metal_structures_corp..pdf",
   "excerptNote": "Verbatim from the Background (project, letters of intent and unsigned subcontracts, stairs default, replacement cost) and The Lawsuit (counts and amounts sought, defenses, counterclaim, joint pretrial stipulation), plus the one sentence describing the defendants' joint proposal for settlement. Removed: the opening paragraph (states the fee holding), the sentence noting the appeal concerns attorney's fees, the whole Final Merits Judgment section (amounts found, setoff, net award), the per curiam affirmance, the fee motions and fee award, the sentence placing the proposal inside a post-trial fee motion, and all analysis. Source is the court's slip opinion as archived by CourtListener."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent East Coast Metal Structures Corp., the structural steel subcontractor on a three-building sugarcane bagasse processing facility in Belle Glade, Florida, on its claims for the unpaid subcontract balances against the design-build contractor, the project owner and their payment-bond sureties in Palm Beach County circuit court. The project owner counterclaims for the cost of completing the pulping-building stairs. The case is set for a bench trial.",
   "documentText": "The genesis of this appeal is a dispute arising out of the construction of a sugarcane bagasse processing facility located in Belle Glade, Florida (“the Project”).\n\nProject Owner hired Contractor to design and construct the Project, which consisted of three separate buildings: an office building, a molding building, and a pulping building. Contractor thereafter issued bid drawings to prospective bidders for the steelwork to be completed on the three buildings. Contractor ultimately provided Subcontractor with Letters of Intent (“LOIs”). Each LOI identified the name of the building requiring work and a lump sum price to be paid for the work, and included express language that subcontracts were forthcoming. Shortly thereafter, Contractor sent Subcontractor three subcontracts, one for each building, providing for the fabrication, installation, and delivery of structural steel and miscellaneous metals. Unlike the LOIs, each of the subcontracts included a cross-default provision providing that if Subcontractor breached any of the subcontracts, Contractor could “offset all costs to complete the Work from this Subcontract Agreement and/or other contracts . . . to recompense the Contractor.”\n\nIt is undisputed that Subcontractor did not sign the subcontracts. Nonetheless, the parties proceeded as if the subcontracts had been executed, with Subcontractor completing all of the steelwork for the office and molding buildings, and part of the work for the pulping building, pursuant to the subcontracts. Subcontractor failed, however, to supply and install the stairs in the pulping building, as required under the pulping building subcontract.\n\nProject Owner eventually took over the Project from Contractor and assumed the three subcontracts with Subcontractor. After several months of delay, Project Owner began searching for a replacement subcontractor to complete the stairs and requested a deductive change order from Subcontractor. In response, Subcontractor provided a deductive change order for $12,300, which was less than the original estimated value of the stairs at the time of Subcontractor’s bid. After Subcontractor refused to negotiate its proposed credit for the stairs, Project Owner sent Subcontractor a notice of default and eliminated the stairs from Subcontractor’s scope of work. Subcontractor did not respond to the notice of default or attempt to cure the default; instead, Subcontractor recorded a claim of lien.\n\nProject Owner thereafter hired a new subcontractor to complete the stairs at a cost of nearly $127,000. In light thereof, Project Owner refused to pay Subcontractor the balance owed on the subcontracts, including the retainages on the molding and office building subcontracts, pursuant to the cross-default provisions.\n\nSubcontractor then sued Defendants for the remainder of the balance. Subcontractor’s operative complaint also disputed the validity of the unexecuted subcontracts and argued the LOIs should govern instead.\n\nSubcontractor’s complaint included five counts. Count I alleged claims against Contractor and its surety Philadelphia on the original payment bond pursuant to section 713.23, Florida Statutes. Count II alleged claims against Project Owner and its surety Suretec on the transfer payment bond pursuant to section 713.23, Florida Statutes. Count III alleged claims against Contractor and Project Owner for breach of contract on the pulping building, and sought $63,935.40. Count IV alleged claims against Contractor and Project Owner for breach of contract on the office and molding buildings, and sought $28,011.30 for the molding building and $10,065 for the office building. Finally, Count V alleged alternative quantum meruit claims against Contractor and Project Owner. In total, Subcontractor sought $102,011.70 in damages.\n\nDefendants answered the complaint and raised several affirmative defenses seeking to avoid payment to Subcontractor for various reasons, including a claim for “set-off against any moneys owed to [Subcontractor]” for the cost of completing the stairs. Project Owner also filed a counterclaim against Subcontractor for breach of the pulping subcontract, and sought damages incurred as a result of Subcontractor’s failure to complete the stairs. Subcontractor answered the counterclaim and asserted several affirmative defenses, including that Project Owner “failed to satisfy all conditions precedent to bringing this action.”\n\nThe matter ultimately proceeded to a ten-day bench trial. Prior to trial, the parties filed a joint pretrial stipulation wherein they listed the following relevant disputed issues of fact for determination at trial: 1. Whether the parties ever entered into written subcontract agreements for the office building, molding building and pulping building . . . . 2. Whether the parties’ actions provided assent to the unsigned subcontracts for the office building, molding building, and pulping building. 3. Whether the Defendants breached the parties’ agreements related to the office building, molding building and pulping building . . . . 4. Whether [Subcontractor] breached the parties’ agreements by not supplying and installing the stairs at the pulping building in a timely fashion. 5. The amount of damages sustained on account of any breach of the contract by any party. 6. The reasonable value of the pulping stairs. 7. Whether [Subcontractor] has perfected and is entitled to foreclose its mechanic’s lien.\n\nThe proposal was made on behalf of all Defendants for the purpose of resolving all claims, including the counterclaim, with Project Owner offering to pay the entire $62,000 settlement amount and Contractor and the two sureties each offering to contribute $0.00."
  },
  "outcome": {
   "amount": 29483.7,
   "amountIsTheRequestedAmount": false,
   "date": "2024-05-15",
   "description": "After a ten-day bench trial the court held the unsigned subcontracts governed, found the subcontractor entitled to $71,897.70 on the three buildings ($10,065 office, $28,011.30 molding, $33,821.40 pulping), denied recovery on the payment bonds, and on the counterclaim awarded the project owner $42,414 for the reasonable value of the stairs, offset under the cross-default provisions, leaving the subcontractor a net $29,483.70 ($36,304.51 with interest). The merits judgment was affirmed per curiam (357 So. 3d 116, Fla. 4th DCA 2023). A successor judge then awarded the subcontractor $446,628.65 in prevailing-party attorney's fees and costs; on May 15, 2024 the Fourth District reversed that award in its entirety and remanded for an award of attorney's fees to the defendants (under the $62,000 joint proposal for settlement and the bond-claim fee statute).",
   "attorneysFeesAtTrial": 446628.65,
   "attorneysFeesOnAppeal": "reversed; fees directed to the defendants instead (amount to be set on remand)",
   "appellateChange": "affirmed",
   "finalAmount": 29483.7,
   "finalNote": "Merits judgment affirmed per curiam in 2023; the subcontractor's $446,628.65 fee-and-cost award was reversed in 2024 and fees were directed to the defendants, so the subcontractor's net position after fees is well below the $29,483.70 damages figure."
  },
  "expectedRole": "Contractor / Design Professional",
  "offers": [
   {
    "by": "defendant",
    "amount": 62000,
    "date": "five months before trial (s. 768.79 joint proposal; project owner to pay all)",
    "quote": "pursuant to a rejected joint proposal for settlement for $62,000 which they had served on Subcontractor five months prior to trial."
   }
  ],
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "sharpe-trust-v-south-florida-pool-spa-2016",
  "source": {
   "caseName": "South Florida Pool and Spa Corp. and Candido Sanchez v. Sharpe Investment Land Trust Number J, d/b/a Miller Heights Shopping Center",
   "court": "Florida Third District Court of Appeal, on appeal from the Circuit Court for Miami-Dade County (Lower Tribunal No. 10-3721)",
   "docket": "No. 3D15-102",
   "decided": "2016-11-16",
   "url": "https://storage.courtlistener.com/pdf/2016/11/16/south_florida_pool_and_spa_corp._v._sharpe_investment_land_trust_number_j.pdf",
   "excerptNote": "Verbatim from Part I (Relevant Facts and Procedural Background): the eviction suit, the fire, the amended complaint's damages and negligence counts, the severed eviction summary judgment, and the tenant's January 2012 proposal for settlement. Removed: the opening two paragraphs (state the result of the damages trial and the appeal), the sentence and everything after it stating the result of the November 2014 damages trial, footnote 1, and all analysis and footnotes 2-7 (one of which states the landlord's eviction fee award). The opinion states no figure for the landlord's claimed damages."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the landlord, Sharpe Investment Land Trust Number J, doing business as Miller Heights Shopping Center in Miami, on its damages claims against its commercial tenant South Florida Pool and Spa Corp. and the tenant's guarantor for breach of the lease and for negligence arising from a fire in the leased premises. The eviction claims were severed and decided separately; the damages claims are set for trial in Miami-Dade circuit court.",
   "documentText": "Alleging that its tenant had failed to pay monthly rent, Landlord, on January 20, 2010, sued Pool and Spa for eviction, and also sued Sanchez who had executed an unconditional guaranty of Pool and Spa’s lease obligations. During the pendency of the case, a fire erupted in Pool and Spa’s leased premises in February of 2010. Landlord filed an amended complaint, adding an eviction count based on Pool and Spa’s failure to maintain insurance as required by the lease. The amended complaint also included damages claims based on Pool and Spa’s alleged lease breaches, and a negligence count against both defendants seeking damages resulting from the fire. Landlord pled entitlement to attorney’s fees in each count. Having already decided to sever Landlord’s eviction claims from its damages claims, the trial court, in November of 2010, entered a summary judgment of eviction in Landlord’s favor, determining that Pool and Spa had breached the lease agreement by its failure to procure adequate insurance. Pool and Spa appealed that summary judgment to this Court in case number 3D10-3403.\n\nDuring the pendency of that appeal, Pool and Spa served a proposal for settlement on Landlord in January of 2012, pursuant to section 768.79 of the Florida Statutes and accompanying rule 1.442 of the Florida Rules of Civil Procedure. Pool and Spa’s proposal offered $15,000.00 to settle Landlord’s damages claims. The proposal was conditioned upon Landlord executing the general release attached to the proposal. Landlord did not accept the proposal for settlement."
  },
  "outcome": {
   "amount": 0,
   "amountIsTheRequestedAmount": false,
   "date": "2016-11-16",
   "description": "After a November 2014 trial on the landlord's damages claims, the trial court entered final judgment for the tenant, involuntarily dismissing all of the landlord's damages claims (lease breach and fire negligence). The tenant's motion for fees under its $15,000 proposal for settlement was denied because the proposal was ambiguous; the Third District affirmed that denial and the eviction summary judgment on November 16, 2016. The landlord separately recovered about $56,000 in attorney's fees for the eviction proceedings, which is not part of the damages outcome.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 0,
   "finalNote": "Affirmed; the landlord took nothing on its damages claims."
  },
  "expectedRole": "Landlord",
  "offers": [
   {
    "by": "defendant",
    "amount": 15000,
    "date": "January 2012 (s. 768.79 proposal by tenant on landlord's damages claims)",
    "quote": "Pool and Spa’s proposal offered $15,000.00 to settle Landlord’s damages claims."
   }
  ],
  "category": "lease-disputes",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "waterwood-v-long-beach-2020",
  "source": {
   "caseName": "Waterwood Enterprises, LLC v. City of Long Beach",
   "court": "California Court of Appeal, Second Appellate District, Division One, on appeal from the Superior Court of Los Angeles County (No. NC060787)",
   "docket": "B296830",
   "decided": "2020-12-18",
   "url": "https://storage.courtlistener.com/pdf/2020/12/18/waterwood_enterprises_llc_v._city_of_long_beach.pdf",
   "excerptNote": "Verbatim from the Background: the sale-leaseback, the lease repair covenant, the complaint's allegations and amount, footnote 2 (the deputy city attorney's April 2016 letter, moved to follow the complaint), the City's answer, the trial court's description of each side's trial positions, the jury-instruction statements of each side's claims, the City's own description of its position from its fee motion, and the sentences describing the parties' section 998 offers. Removed: the opening paragraphs (state the award and holdings), footnote 1 and the footnote 2 marker, the jury's verdict and special verdict, both fee motions' amounts and outcome arguments, the trial court's fee ruling and its reasoning, the amended judgment, and all analysis."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent the landlord, Waterwood Enterprises, LLC, on its single claim for breach of the repair and surrender covenants of a ten-year sale-leaseback of a commercial property in Long Beach that the City of Long Beach used as a police evidence storage facility (roof, HVAC, asphalt, concrete and block-wall conditions at surrender). The City says most of the conditions are reasonable wear and tear. The case is set for a jury trial in Los Angeles County Superior Court.",
   "documentText": "The City of Long Beach (the City) sold property to Waterwood Enterprises, LLC (Waterwood) in 2005, then leased it back for a 10-year term beginning on October 14, 2005. The City used the property as a police evidence storage facility. The lease terminated on October 31, 2015.\n\nThe lease provides: “Tenant [the City] at its sole cost and expense, shall maintain the Demised Premises and each part thereof, structural and nonstructural, in good order and condition, and . . . shall make any necessary Repairs thereto, interior and exterior, whether extraordinary, foreseen or unforeseen. When used in this Article VII, the term ‘Repairs’ shall mean all Alterations necessary for Tenant to properly maintain the Demised Premises in at least the same order and condition as of the date hereof, normal wear and tear excepted.” (Boldface & underscoring omitted.) The lease defines “Demised Premises” as the land and its improvements.\n\nOn August 29, 2016, Waterwood filed its complaint against the City alleging a single cause of action for breach of a written contract. Waterwood averred that when the City left the premises, the roof had multiple leaks. “The leaks were so bad that, in the rain storm within two months of the surrender of the Premises, ceiling tiles became waterlogged and collapsed, carpet and the underlying padding were damaged, and a new tenant was unable to fully use the Premises.” Waterwood alleged that the City “has acknowledged that it should have paid for repairs to the roof, but failed to do so.” Waterwood further alleged that when the City left the premises, “the air conditioner was inoperable and the HVAC system had not been properly maintained or repaired. The air conditioner was operating and effective when the Lease was entered, and its failure was not the result of reasonable wear and tear.” Waterwood also alleged when the City left the premises, that “the block wall at the southeast co[rn]er of the Premises was damaged as if hit by a truck, such that concrete blocks were cracked, fence supports were tilted, and fencing was leaning.” Waterwood further averred that when the City left the premises, “grass was growing in, and causing deterioration of, asphalt at the Premises, and there were [sic] severe indentations occurred in the asphalt.” When the City left the premises, “concrete on the Premises had been broken, cracked, and subsided or shifted such that water ponds [sic] and may cause deterioration of the base under the concrete, and has allowed grass to grow in the concrete areas.” Waterwood reiterated that the foregoing conditions were not mere reasonable wear and tear. Waterwood alleged it was informed and believed the amounts due under the lease totaled at least $150,000. Waterwood also requested its reasonable attorney fees.\n\nIn a letter dated April 21, 2016, the deputy city attorney wrote Waterwood’s principal: “While we acknowledge that the City should have paid for repairs to the roof necessary to put it into working condition, we do not believe the Lease required the City to pay for a replacement roof, nor do we believe that the Lease required the City to repair or replace an HVAC system that was in working order at the time the City vacated the Premises.”\n\nThe City answered on October 4, 2016. The City entered a general denial, denying that “the Plaintiff sustained damages in the sum or sums alleged, or in any other sum or sums, or at all.” Although the City raised 18 affirmative defenses, it did not allege or acknowledge in those defenses any debt owed to plaintiff or that it had tendered any such debt to plaintiff.\n\n“At trial, there was considerable testimony as to various items plaintiff contended that defendant had a duty to repair before the lease expired and that because defendant failed to repair the items, plaintiff argued it was entitled to recover as damages the cost to repair the items. The significant contested items were plaintiff’s contention that: (a) defendant was required to remove and replace an entire roof on one of the buildings; (b) defendant was required to replace two air conditioners; and (c) defendant was required to tear up and replace all of the existing asphalt parking lot on the property and nearby concrete pads.” The City contended “that the roof did not require replacement, because any deterioration was due to reasonable wear and tear. As to the two air conditioners, defendant argued that neither air conditioner required replacement. As to the condition of the asphalt, defendant admitted that plaintiff was entitled to recover some of its claimed damages to repair the asphalt, because some of the asphalt had deteriorated based on use that was beyond any reasonable wear and tear.” The City argued it “was not liable for the replacement cost of the entire parking lot or the concrete pads.”\n\n“Waterwood Enterprises LLC claims that it and The City of Long Beach entered into a written contract for the 10-year lease of the subject commercial property. Waterwood Enterprises LLC claims that The City of Long Beach breached this contract by not surrendering the premises at the end of the lease broom clean and in the same order and condition as the premises was in [sic] on the date the lease began subject to reasonable wear and tear; by not performing repairs and maintenance during the ten-year tenancy, and by not repairing certain damage to the property that occurred during the term of the lease. “Waterwood Enterprises LLC also claims that The City of Long Beach’s breach of this contract caused damages to Waterwood Enterprises LLC for which the City of Long Beach should pay.” The trial court further instructed the jury: “The City of Long Beach denies that it breached the lease agreement, and contends that it completed the repairs required under the lease agreement, except for items caused by reasonable/normal wear and tear.”\n\nThe City admitted from the beginning that it should have paid for some repairs to the roof necessary to put it into working condition, as well as a few other items. However, it staunchly disputed Plaintiff’s claim that the City should tear off and replace the entire roof, and install two entirely new HVAC units. The City also denied that it had an obligation to tear up the entire asphalt parking lot, and nearby concrete pads, and install new asphalt and concrete.”\n\nEach party made various settlement offers, including Waterwood’s Code of Civil Procedure section 998 offer to compromise for $120,000 plus attorney fees and costs and the City’s Code of Civil Procedure section 998 offer to compromise for $40,001. No party accepted the other’s settlement offers."
  },
  "outcome": {
   "amount": 45050,
   "amountIsTheRequestedAmount": false,
   "date": "2020-12-18",
   "description": "After a 10-day jury trial the jury found the City breached the lease and awarded Waterwood a lump sum of $45,050 in contract damages (plus $1,987.06 interest; Waterwood was awarded $19,905.04 in costs). The trial court then found the City the prevailing party for contractual fees and ordered Waterwood to pay the City $172,375 in attorney fees. On December 18, 2020 the Second District affirmed in part and reversed the fee award to the City, remanding with the trial court limited to finding Waterwood the prevailing party or no prevailing party. The damages award was not disturbed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": "the City's $172,375 fee award was reversed; on remand Waterwood may be found the prevailing party (it had sought $307,068.50 plus $15,000) or no party may be",
   "appellateChange": "affirmed",
   "finalAmount": 45050,
   "finalNote": "Damages affirmed; the fee award against the landlord was reversed and remanded."
  },
  "expectedRole": "Landlord",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 120000,
    "date": "not stated (CCP 998 offer; plus attorney fees and costs)",
    "quote": "Waterwood’s Code of Civil Procedure section 998 offer to compromise for $120,000 plus attorney fees and costs"
   },
   {
    "by": "defendant",
    "amount": 40001,
    "date": "not stated (CCP 998 offer)",
    "quote": "the City’s Code of Civil Procedure section 998 offer to compromise for $40,001."
   }
  ],
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "jmr-construction-v-ear-2015",
  "source": {
   "caseName": "JMR Construction Corp. v. Environmental Assessment and Remediation Management, Inc., and SureTec Insurance Company",
   "court": "California Court of Appeal, Sixth Appellate District, on appeal from the Superior Court of Monterey County (No. M105497)",
   "docket": "H039055 (243 Cal.App.4th 571; modified January 28, 2016)",
   "decided": "2015-12-30",
   "url": "https://storage.courtlistener.com/pdf/2015/12/30/jmr_construction_v._environmental_assessment_etc..pdf",
   "excerptNote": "Verbatim from the opening description of the project and the suit (first paragraph and sentences two to four of the second), the Procedural Background's account of the complaint and cross-complaint, Discussion I.A.1-2 (each side's trial testimony and a selection of JMR's documentary evidence), Discussion I.B.1 (JMR's damages evidence, including its experts' figures), and the sentence describing JMR's identical section 998 offers. Removed: the court's net award and every later sentence of the opening, the summary of appellate arguments and holdings, the trial court's April 2012 ruling, the statement of decision's damages components and the judgment, the post-judgment fee and expert-fee orders, the publication footnote, footnotes 2-4 and markers, the first sentence of the second paragraph (its list is split by the publication footnote), the expert's general explanation of baseline scheduling, the whole documentary-evidence section (JMR's 2007-2008 letters and emails to EAR), expert qualifications, part of the bid-review testimony and the description of the modified total cost method, the appellate court's remarks on what it would not summarize, and all analysis. The Eichleay claim amount is not stated anywhere except in the court's award."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent JMR Construction Corp., the general contractor on a U.S. Army Corps of Engineers dental clinic at the Presidio of Monterey, on its claims against its electrical and plumbing subcontractor EAR and EAR's performance-bond surety SureTec for project delay, disruption and defective-performance damages. EAR cross-complains for the retention JMR withheld under the two subcontracts. The case is set for a bench trial in Monterey County Superior Court.",
   "documentText": "This dispute arose from a public works project involving the construction of a dental clinic at the Presidio of Monterey (the Project). The owner, the United States Army Corps of Engineers (the Corps), retained JMR Construction Corp. (JMR) as general contractor for the Project. JMR, in turn, entered into various subcontracts, including separate electrical and plumbing subcontracts, with Environmental Assessment and Remediation Management, Inc. (EAR). SureTec Insurance Company (SureTec) issued separate bonds guaranteeing EAR’s performance under the two subcontracts.\n\nAfter the Project was completed, JMR filed suit against EAR and SureTec (collectively, defendants) for breach of contract and for foreclosure of the performance bonds. JMR alleged it was damaged as a result of EAR’s failure to perform under the two subcontracts. EAR filed a cross-complaint for recovery of retention funds withheld under the subcontracts.\n\nOn April 29, 2010, JMR filed its complaint against EAR and SureTec. JMR alleged four causes of action: (1) breach of the plumbing subcontract; (2) enforcement and foreclosure on the performance bond for the plumbing subcontract; (3) breach of the electrical subcontract; and (4) enforcement and foreclosure on the performance bond for the electrical subcontract. The first and third causes of action were alleged against EAR, while the second and fourth causes of action were alleged against SureTec. JMR alleged that EAR’s failure or refusal to perform its work under the two subcontracts in accordance with the Project’s schedule “caused project delay, acceleration, and related damages to JMR.” The alleged damages included “offset of JMR claims against the Owner, increased cost of JMR on-site performance costs and other loss of cost recovery and overhead on the Project.” In each of the four causes of action, JMR claimed its damages were in an amount “not less than $200,000.00.”\n\nEAR filed a cross-complaint against JMR alleging breach of contract and common counts. It alleged in separate causes of action that JMR had breached the electrical subcontract and plumbing subcontract, and that as a result of these breaches, EAR had been damaged in an amount in excess of $108,913.31.\n\nOn July 25, 2006, the Corps notified JMR that it had been awarded the contract to complete the Project at a total contract price of $6,691,000 (the prime contract). Thereafter, on September 19, 2006, JMR and EAR executed the subcontract for electrical work for a total contract price of $732,500. On November 14, 2006, JMR and EAR executed the subcontract for plumbing work for a total contract price of $471,881. Both subcontracts recited that the schedule for performance of the prime contract was 450 days from the “Owner’s Notice to Proceed Date [of] 8/30/06,” thereby making the completion date November 23, 2007. EAR acknowledged these “contract durations and time constraints and [agreed it would] comply with [JMR’s] construction schedule.” Work on the Project continued nearly six months passed the scheduled completion date of November 23, 2007. The beneficial occupancy date—i.e., completion of the Project—was May 14, 2008.\n\nSeveral representatives of JMR and one JMR-retained expert testified that EAR was responsible for concurrent delays on the Project. Ron Rivard, JMR’s Vice President, testified that the Project was delayed and the Corps, through change orders, granted a 180-day extension of the Project completion date. The Corps was responsible in part for the extension due to delays in approval of the landscaping plans. Rivard also testified that three subcontractors—EAR, Countywide Mechanical (Countywide), and Del Monte Glass (Glass)—contributed to delays, but he did not know the number of delay days caused by each of the three subcontractors, saying “[t]hat’s up [to] the experts.” Rivard testified that one aspect of EAR-caused delay involved the furnishing of an air compressor. EAR initially disputed that an air compressor was included in its scope of work under the plumbing subcontract, but it eventually supplied an air compressor without producing a submittal beforehand. Submittals were required on the Project so the Corps could give advance approval of the equipment. The air compressor was not approved by the Corps, and EAR refused to provide a Corps-approved replacement compressor. JMR thereafter procured and installed a Corps-approved compressor. Rivard testified that EAR’s failure to supply an approved air compressor caused delay in JMR’s performance under the prime contract. He testified the schedule called for the air compressor to be supplied in October 2007. Instead, it was supplied in February or March 2008.\n\nSteven Hupaylo, JMR’s job superintendent for the Project from its inception to August 2007, was responsible for managing and coordinating the subcontractors in the field. Hupaylo testified the drywall work for the interior of the clinic did not go well. JMR’s plan was to install metal framing, have EAR do its plumbing and electrical work in the uncovered metal frame, and then cover the metal frame along with the plumbing and electrical work with drywall. JMR had separated the building into three areas, with the intention of going room-by-room to have this work done efficiently. According to Hupaylo: “We had a good shot at doing the thing. And the biggest problem we had was . . . the plumbing and electrical that held us up in the [P]roject [by] not having materials, not having skilled people, [and] not having any people sometimes. That was the single biggest issue.” Hupaylo also testified that EAR’s plumbing crew “left the site a lot” and were often working at other locations on the base. EAR’s foreman would sometimes show up on the site without materials; he would promise to return to the site the next day, but would not. As a result of ongoing problems with EAR’s performance under both subcontracts, JMR had to install the drywall in a piecemeal fashion. Daniel Spade worked as JMR’s project manager from January 2007 until the Project’s completion. Spade testified there were significant punch list items at the end of the Project resulting from EAR’s deficient performance under the subcontracts. In addition, aside from the air compressor issue, there were problems with (1) an undersized water heater, (2) the mixing valves controlling hot and cold water, and (3) the improper operation of the fire alarm and life safety system.\n\nJMR also presented testimony from John Elmer, a construction management expert with expertise in scheduling. JMR retained Elmer to review the schedule for the Project, to identify whether there were any delays in the Project’s completion, and to determine the causes of any delays.\n\nElmer opined there was a critical path delay that extended the Project’s completion by 180 days. That delay was reflected in change orders from the Corps extending the completion date of the Project. Elmer testified that the parties responsible for the delays were the Corps and three subcontractors: EAR, Countywide, and Glass. He opined that EAR and Countywide were concurrently responsible for 142 of the 180 days of delay, and that of those 142 days, Glass was concurrently responsible for 28 days of delay. Elmer also testified that from December 19, 2007, to May 14, 2008 (the beneficial occupancy date), the commissioning of the life safety systems (operable heating ventilating and air conditioning, smoke detector, and fire alarm systems) drove the critical path. “Commissioning” involved these systems being “signed off as being complete and operable” and was a precondition for the owner accepting beneficial occupancy. Elmer testified that EAR, Countywide and, to a much lesser extent, Glass were the subcontractors performing work relevant to the completion of these systems. He also said the concurrent delays by Countywide did not delay EAR’s work on the life safety systems, and he opined that JMR did not contribute to any delay in the completion of the Project between December 2007 and May 14, 2008.\n\nRavindra Pendurthi, EAR’s owner, testified that EAR started plumbing work on the Project in late September or early October 2006, even though the subcontract was not formally executed until December 2006. He said EAR commenced electrical work on the Project in or about September 2006, before that subcontract was executed. He testified that EAR started work early at JMR’s urging, because JMR was “behind schedule” on the Project. According to Pendurthi, JMR was slow in providing EAR with a baseline schedule for the Project. He said JMR did not provide it until March 2007. He acknowledged that at the time, EAR responded in writing that the schedule was fine, but that its compliance with it was dependent on timely work by other tradesmen whose work needed to be completed before EAR’s. Pendurthi described several tasks that were added to its scope of work under both subcontracts which extended EAR’s time to complete its performance. He also testified that JMR approved change orders for this additional work, but JMR did not formally grant EAR extensions of time. Instead, in each instance, the JMR representative (either Spade or Hupaylo) advised EAR that JMR was behind schedule but would “take care of [EAR’s extension request] at the end of the [P]roject.” Pendurthi testified there was a period of time in which EAR inquired of JMR about the equipment JMR was going to provide that impacted EAR’s rough-in plumbing work. He said JMR’s delay in providing this information interfered with EAR’s ability to complete its work. Pendurthi denied that EAR lacked sufficient materials or failed to supply sufficient personnel to work on the Project. He also denied that EAR’s work crews on the Project were pulled off the job to do other work. He claimed EAR had dedicated crews for the Project. He acknowledged that EAR’s foreman sometimes did not show up to work because he had a persistent gout problem. But, he said, EAR eventually addressed the issue by replacing the foreman. Pendurthi testified that much of the drywall work—particularly the work in the x-ray room and dentures room—was done out of sequence and was hampered because JMR did not have proper submittals. He said this caused delays in EAR’s performance. Pendurthi also testified that the drywall cost was elevated and its time of completion was lengthened because the Corps required a “level five finish,” which was a quality much more difficult to achieve than a normal sheetrock job. In addition, JMR used an out-of-town workforce that resulted in cost overruns. Pendurthi admitted on cross-examination that EAR did not advise JMR in writing that JMR was causing delays in EAR’s performance. Pendurthi also testified there was a period of time in or about November 2006 when JMR did not have on-site quality control personnel as required by the Corps. JMR asked for help from EAR, and EAR supplied quality control personnel to work on-site for approximately one month. Pendurthi testified that JMR’s failure to have on-site quality control personnel for a period of time delayed EAR’s performance. According to Pendurthi, all of EAR’s work under both subcontracts was accepted. Pendurthi testified that by November 30, 2007—according to applications for payment EAR had submitted—EAR’s plumbing and electrical work were 98.66 percent and 96.36 percent completed, respectively. Pendurthi testified that after December 1, 2007, EAR’s remaining work was “[m]ostly finish work” during which time EAR was waiting for other trades to complete their work.\n\nJMR presented evidence of damages that involved four categories: (1) field overhead delay damages; (2) home office overhead (Eichleay delay damages); (3) delay damages associated with the framing and drywall phase of the Project, utilizing the modified total cost method; and (4) costs associated with EAR’s failure to supply an approved air compressor.\n\nDaniel Spade, JMR’s project manager, testified that the Corps had rejected JMR’s recovery of any extended overhead damages resulting from delays in the Project’s completion. The Corps rejected these damages because there were concurrent delays caused by parties other than the Corps. At trial, JMR’s construction management expert, John Elmer, explained that when the owner of a public works project causes delay, and a subcontractor or subcontractors concurrently cause delay, the owner may grant the general contractor an extension of time to complete the project, but it will not grant the general contractor compensable time (i.e., delay damages payable by the owner). Elmer testified that under such circumstances, the general contractor will typically seek delay damages from the subcontractor, under the theory that the general contractor “should have recovered compensable time, but . . . was precluded from [doing so] because of [the subcontractor’s] delay.”\n\nPerez opined that, under the two subcontracts combined, EAR was responsible for at least 75 percent of the delay damages sustained by JMR during the 142-day concurrent delay period identified by Elmer. Perez arrived at this percentage allocation after considering (a) Elmer’s allocation of EAR’s responsibility for concurrent delays (63 percent); (b) a determination of EAR’s percentage of the total contract value of the mechanical, electrical, and plumbing trades (67 percent); and (c) the percentage of punch list items for the 142-day concurrent delay period (83 percent). Perez also rendered the opinion that JMR sustained field overhead damages associated with EAR’s concurrent delay. Field overhead costs are the costs a contractor incurs in maintaining its field operations, including cost items such as storage trailers, office trailers, and a job superintendent’s salary. Perez concluded that JMR’s total field overhead damages for which EAR was responsible was $161,851.33.\n\nPerez testified that he calculated damages for JMR’s home office costs (otherwise known as unabsorbed overhead costs) using the Eichleay formula. Perez explained that this formula “is a method of allocating those home office overhead costs to a project that [has] been extended or delayed.”\n\nRivard testified that he prepared the bid for the framing and drywall phase of the Project. In doing so, he utilized the plans in an electronic format and used computer software to perform a detailed cost takeoff. The takeoff yielded a bill of materials, and the software automatically assigned a labor factor indicating the number of labor hours associated with the particular area of work. The labor factor was based upon historical data, i.e., JMR’s experience in constructing buildings similar to the building in the Project. The total bid for the framing and drywall phase was $220,000, an amount JMR assumed would be sufficient to perform the work in an orderly fashion and with a reasonable crew size. Rivard testified he was unaware of any mistakes in the bid, and opined that $220,000 was a reasonable cost for that phase of the Project.\n\nCraig Connerty, a certified public accountant with 27 years of experience, testified as an expert on JMR’s behalf. JMR had been a client of Connerty’s accounting firm for over 15 years. Connerty reviewed the costs posted in JMR’s books allocated to the framing and drywall phase of the Project. He testified that the total costs allocated to this phase was $461,535, and he reviewed the subcategories of those costs. Connerty “did a lot of testing with regard to the accounts for reasonableness” by selecting a number of different invoices for review before arriving at the $461,535 figure. Connerty also noted that this figure should be reduced by approximately $48,200 to account for costs that, based upon his conversation with Rivard, were erroneously posted to the framing and drywall phase.\n\nPerez also reviewed the “logged” costs that related to the framing and drywall phase of the Project. This amount totaled $461,534. Perez subtracted the costs that had been incorrectly allocated to the framing and drywall phase. These were the same figures identified in the testimony of JMR’s accounting expert, Craig Connerty. Perez also subtracted a per diem figure associated with the erroneously posted costs. Perez then calculated the total amount of disruption damages allocable to EAR relating to the framing and drywall phase, which he determined to be $185,729.\n\nIt asserted that more than 10 days before trial, in accordance with section 998, it had served identical offers to EAR and SureTec in which it offered to have judgment taken against the respective defendants in the amount of $375,000 with each side to bear its own costs."
  },
  "outcome": {
   "amount": 315631,
   "amountIsTheRequestedAmount": false,
   "date": "2015-12-30",
   "description": "After a five-day bench trial (January 2012) the court found for JMR and, after JMR withdrew one claim and adjusted another in its proposed statement of decision, entered judgment on August 14, 2012 for a net $315,631: $29,249 air compressor, $132,168 field overhead for delay, $15,440 field overhead for closeout, $14,244 markup, $60,693 Eichleay home office overhead and $185,730 framing/drywall disruption, less $121,893 retention withheld; EAR took nothing on its cross-complaint. A later order awarded JMR $90,644.07 in section 998 expert fees and found it entitled to attorney fees (amount undetermined) for defending the cross-complaint. On December 30, 2015 the Sixth District affirmed the judgment (Eichleay and modified total cost methods upheld, surety liable) and reversed the expert-fee award as premature.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": "entitlement to fees for defending the cross-complaint found but amount never fixed; $90,644.07 expert-fee award reversed",
   "appellateChange": "affirmed",
   "finalAmount": 315631,
   "finalNote": "Judgment affirmed; expert-fee order reversed and remanded."
  },
  "expectedRole": "Owner / Developer",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 375000,
    "date": "more than 10 days before trial (identical CCP 998 offers to subcontractor and its surety)",
    "quote": "it had served identical offers to EAR and SureTec in which it offered to have judgment taken against the respective defendants in the amount of $375,000 with each side to bear its own costs."
   }
  ],
  "category": "construction-defect",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "khalia-v-rosebud-2019",
  "source": {
   "caseName": "Khalia, Inc. v. Daniel Rosebud (and vice versa)",
   "court": "Court of Appeals of Georgia, Fifth Division",
   "docket": "A19A1891, A19A1969",
   "decided": "2019-12-06",
   "url": "https://storage.courtlistener.com/pdf/2019/12/24/khalia_inc._v._daniel_rosebud.pdf",
   "excerptNote": "Verbatim from the statement of facts (the shooting at 490 Fairburn Road and the evidence of prior crime, security practices and cameras), with the opening clause 'Thus viewed in favor of the verdict, the record shows that' cut from the first sentence. Removed: the opening paragraph (states the demand together with the verdict amount), the standard-of-review paragraph, the directed-verdict rulings, verdict, apportionment and judgment, the post-trial motions, and all analysis, including the fee section where the parties' highest offers ($50,000 and $150,000) are recited; those offers are not in the input because every sentence stating them also states or implies the outcome. The opinion gives no medical or economic damages figures."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Daniel Rosebud, who was shot while sitting in a parked car at the gas pumps of a gas station and convenience store at 490 Fairburn Road in Atlanta, on his negligent-security claim against Khalia, Inc., the store's tenant-operator. The case is set for a jury trial.",
   "documentText": "On November 1, 2015, Rosebud and his friend Dontavious Miles were looking for a barber to cut Miles’s hair for a new job when they stopped at a gas station and convenience store at 490 Fairburn Road in Atlanta. The property, which was leased to Khalia, included a chicken wing shop under different corporate ownership and a common parking area. Miles parked the car he was driving at the end of the gas pump island and went inside the convenience store while Rosebud napped in the front passenger seat. A man in a white hat began a conversation with Miles, after which shots were exchanged between the two men, some of which hit Rosebud. Miles drove away but was forced to stop by an oncoming train at a nearby railroad crossing. After Miles abandoned the car, Rosebud lay down to evade detection and then ran down the tracks, where he called 911.\n\nEvidence before the jury showed that 490 Fairburn Road was a well-known scene of illegal drug transactions, loitering requiring police intervention, and at least two incidents of prior gunplay, including a shooting inside the store three days before the incident at issue. The store manager knew of the gunplay, and a beat officer testified that the location’s level of criminal activity required him to stop there four or five times a day. A detective also testified that although businesses are authorized to obtain a “criminal trespass warning” empowering the police to arrest trespassers, Khalia had never requested such a warning.\n\nKhalia’s principal testified that the man in the white hat had been loitering outside and around the gas station for more than 20 minutes before the shooting. Although the store manager testified at trial that Khalia regularly held safety meetings and reported criminal activity, he was impeached with his own deposition testimony that store employees were instructed “never” to “make any sort of reports or document anything on paper[.]” The evidence also showed that there were 14 cameras located inside the store, but only two, which were not monitored, outside."
  },
  "outcome": {
   "amount": 1134122.52,
   "amountIsTheRequestedAmount": false,
   "date": "2019-12-06",
   "description": "The jury returned a verdict of $1,718,367.46 in total damages, finding Khalia 66% at fault and the driver and the shooter 17% each; the trial court entered judgment against Khalia of approximately $1.134 million (66% of the verdict is $1,134,122.52), denied JNOV and new trial, and awarded Rosebud $140,951.17 in fees and expenses under OCGA 9-11-68 after Khalia rejected his $150,000 demand (Khalia's highest offer was $50,000). The Court of Appeals affirmed on December 6, 2019.",
   "attorneysFeesAtTrial": 140951.17,
   "attorneysFeesOnAppeal": "affirmed",
   "appellateChange": "affirmed",
   "finalAmount": 1134122.52,
   "finalNote": "Affirmed. The opinion states the judgment only as approximately $1.134 million; the figure here is 66% of the stated verdict."
  },
  "expectedRole": "Injured Party / Claimant",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 150000,
    "date": "pretrial (OCGA 9-11-68 demand)",
    "quote": "After defendant Khalia, Inc. rejected Rosebud’s pretrial demand for $150,000, a jury found Khalia responsible for $1.134 million in damages."
   },
   {
    "by": "defendant",
    "amount": 50000,
    "date": "pretrial (highest offer)",
    "quote": "value added over Khalia’s highest offer (which was $50,000) and over Rosebud’s highest offer (which was $150,000)."
   }
  ],
  "category": "premises-liability",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "cajun-contractors-v-laguerre-2021",
  "source": {
   "caseName": "Cajun Contractors, Inc. v. Max Laguerre et al. (companion: Cajun Contractors, Inc. v. Peachtree Property Sub, LLC, d/b/a Crowne Plaza Hotel Atlanta-Midtown)",
   "court": "Court of Appeals of Georgia, First Division",
   "docket": "A21A1120, A21A0311",
   "decided": "2021-06-30",
   "url": "https://storage.courtlistener.com/pdf/2021/06/30/cajun_contractors_inc._v._peachtree_property_sub_llc_dba_crowne_plaza.pdf",
   "excerptNote": "Verbatim from the Case No. A21A1120 statement of facts (the trade contract, the rooftop pool-deck demolition, safety measures, the falling pipe and injuries, footnote 3 on conflicting testimony, the complaint, and the pre-trial hotel settlement), with the clause 'So viewed, the evidence shows that' cut from the first sentence; from Division 2, the offer history (the $75,000 April 2018 offer, Cajun's $25,000 and $50,000 counteroffers, and the first sentence of footnote 11 on the $250,000 global offer); and from Case No. A21A0311, the hotel defendants' indemnity tender and the $1,000,000 settlement. Removed: the opening paragraphs (state the verdict, fee award and holdings), footnotes 1, 2, 4, 5 and markers, the verdict, punitive phase and judgment, the post-trial motions and fee award, the rest of footnote 11, and all analysis."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Max Laguerre, a taxi driver struck at the hotel taxi stand by a metal pipe that fell from a rooftop pool-deck renovation at the Crowne Plaza Atlanta-Midtown Hotel, on his negligence claims (direct and vicarious, with punitive damages) against the renovation's general contractor, Cajun Contractors, Inc. The hotel owner and manager have settled; the case against the contractor is set for a jury trial.",
   "documentText": "In March 2015, Cajun entered into a contract to perform renovation work at the Crowne Plaza Atlanta – Midtown Hotel, which was owned and managed by the Hotel Defendants (the “Trade Contract”). Under the Trade Contract, Cajun agreed to supervise the work done on the renovation project and to be liable for any loss or damage to the property or injuries to persons caused by the action or neglect of its employees, subcontractors, or consultants. Cajun also agreed to “keep the premises and the surrounding area free from accumulation of waste materials or rubbish caused by operations under the [Trade] Contract,” and to “take all reasonable actions needed to provide clean, unencumbered, well defined, and safe access to the Owner’s facilities for vehicles, guests, visitors, and employees.”\n\nThe renovation project was later expanded through a change-work order to include renovations to the outside pool deck located on the roof of the hotel. As part of the renovation, Cajun was to demolish cabanas and a wall along the edge of the hotel roof. Cajun hired RYR Construction, LLC to perform some of the renovation work at the hotel, including the painting of a ballroom and the pool deck renovation. With respect to the pool deck renovation, workers for RYR considered Troy Bossier, the president of Cajun, to be their boss on the job, and he was at the work site everyday and controlled the demolition work done in the pool area. No decisions were made about the work done on the roof without first talking to Bossier, who would come to the pool deck and direct RYR workers “as to what part of the project they should be doing.” Cajun provided tools and equipment to RYR, told RYR what hours it could work on the pool deck, devised the plan for demolishing the rooftop wall and the sequence in which the work should be performed, and controlled the work site and work flow.\n\nBefore the work on the pool renovation commenced, Cajun did not develop a public hazard control plan or a site-specific safety plan, have any safety meetings with RYR, or inform RYR of any safety rules. Cajun simply told RYR to ensure that nothing fell from the roof, even though RYR had no prior experience performing exterior demolition work. No barriers, catch platforms, enclosures, or perimeter debris netting were installed to protect the public from hazards from the rooftop construction site. No signs were placed outside the hotel to warn that there was construction overhead, and no portion of the sidewalk below was blocked off with barricades. Nor was any effort made to relocate the hotel taxi stand, which was in the front of the hotel below the elevated construction site.\n\nOn July 20, 2015, RYR was demolishing part of the wall along the side of the hotel roof, which caused the cabanas to shake. As a result of the shaking caused by the demolition work, an unsecured eight-foot metal pipe fell from the roof of one of the cabanas down the side of the hotel and struck Laguerre, a taxi cab driver, who was standing outside of his cab at the hotel taxi stand. As a result of the impact, Laguerre suffered a broken nose and injuries to his arm, face, head, and wrist, and he was diagnosed with a “mild traumatic brain injury.” Prior to the incident, RYR had not inspected the pool cabana roofs, even though one of RYR’s partners who worked on the project acknowledged that he knew that there was a danger of objects or debris falling from the hotel roof as a result of the demolition work, and even though Cajun had provided ladders to RYR so that workers could see and reach the top of the cabanas. Nor did Cajun ever direct RYR to conduct such an inspection as part of the demolition plan that Cajun developed, and Cajun disavowed any responsibility to itself conduct a safety inspection.\n\nThere was testimony at trial that the pipe was a conduit for containing electrical wiring, and that there were electrical subcontractors hired by Cajun working on the pool renovation. There was other, conflicting testimony that the pipe could have been placed on the cabana roof by a hotel employee.\n\nIn April 2017, Laguerre filed suit against the Hotel Defendants and Cajun. Laguerre’s complaint alleged, among other things, that Cajun breached its duty of reasonable care by negligently failing to implement safety precautions for the pool renovation project and by negligently training, supervising, and retaining those who worked on the project. The complaint further alleged that Cajun was vicariously liable under respondeat superior and agency principles for the negligence of RYR in failing to secure the construction site from the risk of falling objects. Laguerre sought compensatory damages and later amended his complaint to seek punitive damages.\n\nLaguerre filed his lawsuit on April 20, 2017. After written discovery had been conducted and Laguerre (but not the defendants) had been deposed, Laguerre served Cajun with an offer to settle the case for $75,000 on April 24, 2018. The offer stated that it was intended “to fully satisfy all claims presented in this matter . . . , including all claims for injuries arising out of the incident that occurred on or about July 20, 2015, which is the subject of [this] civil action,” and that the “offer includes any claims for punitive damages.” Cajun rejected the offer and served Laguerre with two offers of settlement, one for $25,000 and the other for $50,000, both of which were rejected by Laguerre.\n\nEarlier in the litigation, on January 24, 2018, Laguerre served the Hotel Defendants and Cajun with a global offer to settle the case for $250,000, which was rejected.\n\nAfter the trial court denied the Hotel Defendants’ motion for partial summary judgment, they tendered another request for defense and indemnity pursuant to the Indemnity Provision. As part of their tender, the Hotel Defendants asked Cajun to respond to Laguerre and take steps to effectuate a “global settlement” on their behalf. Cajun did not accept the tender made by the Hotel Defendants.\n\nAs pointed out supra, shortly before trial, the Hotel Defendants reached a settlement with Laguerre under which they agreed to pay him $1,000,000."
  },
  "outcome": {
   "amount": 5250000,
   "amountIsTheRequestedAmount": false,
   "date": "2021-06-30",
   "description": "The jury found Cajun vicariously liable for its subcontractor, apportioned 100% of fault to Cajun, and awarded $5,000,000 compensatory and $500,336 punitive damages; the trial court entered judgment of $5,250,000 (punitive capped at $250,000) and awarded Laguerre $1,050,000 in attorney fees plus $45,196.47 in expenses under OCGA 9-11-68 based on the rejected $75,000 offer. The Court of Appeals affirmed the judgment and fee award on June 30, 2021 (A21A1120) and reversed the hotel defendants' indemnity judgment against Cajun (A21A0311). Laguerre separately received $1,000,000 from the hotel defendants' pre-trial settlement, which is not part of this amount.",
   "attorneysFeesAtTrial": 1050000,
   "attorneysFeesOnAppeal": "affirmed",
   "appellateChange": "affirmed",
   "finalAmount": 5250000,
   "finalNote": "Affirmed as to Laguerre's judgment and fees."
  },
  "expectedRole": "Injured Party / Claimant",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 250000,
    "date": "2018-01-24 (global offer to hotel defendants and contractor)",
    "quote": "Laguerre served the Hotel Defendants and Cajun with a global offer to settle the case for $250,000, which was rejected."
   },
   {
    "by": "plaintiff",
    "amount": 75000,
    "date": "2018-04-24 (OCGA 9-11-68 offer to contractor)",
    "quote": "Laguerre served Cajun with an offer to settle the case for $75,000 on April 24, 2018."
   },
   {
    "by": "defendant",
    "amount": 50000,
    "date": "after April 2018 (contractor's counteroffers of $25,000 and $50,000)",
    "quote": "one for $25,000 and the other for $50,000, both of which were rejected by Laguerre."
   }
  ],
  "category": "premises-liability",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "eichenblatt-v-piedmont-maple-2021",
  "source": {
   "caseName": "David Eichenblatt v. Piedmont/Maple, LLC, Kaufman Development Partners, LP, and Craig S. Kaufman",
   "court": "Court of Appeals of Georgia, Fourth Division",
   "docket": "A20A2052",
   "decided": "2021-01-29",
   "url": "https://storage.courtlistener.com/pdf/2021/02/16/david_eichenblatt_v._piedmontmaple_llc.pdf",
   "excerptNote": "Verbatim from the factual summary (formation of Piedmont/Maple, the 2011 verdict in the earlier suit, the member loan, the separate parcel sales, the tendered dissolution distribution, the declaratory action and the counterclaims with the unpaid-rent figure), the Second Appeal summary-judgment history, the offer-of-settlement sentences, and paragraph 1 of the appellees' OCGA 9-11-68 offer. Removed: the opening paragraph (fee award and holding), the sentence pointing to prior opinions, the confessed judgment, directed verdict, jury verdict and final judgment, the Third Appeal, the fee motion and award, the rest of the offer's text, and all analysis. The earlier 2011 jury award ($625,000) is a separate suit's result and is kept as background."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent David Eichenblatt, a former member who keeps a 40 percent distribution right in Piedmont/Maple, LLC, a real estate investment company that owned and operated commercial property in Atlanta, on his counterclaims for breach of contract and breach of fiduciary duty against the managing member Kaufman Development Partners and Craig Kaufman, in the company's declaratory judgment action over his dissolution payment. The case is set for a jury trial.",
   "documentText": "In 1995, Eichenblatt and KDP, as its sole members, formed Piedmont/Maple, a real estate investment company that owned and operated a piece of commercial property in Atlanta. Pursuant to the operating agreement, Eichenblatt would receive up to 40 percent of Piedmont/Maple’s quarterly cash flow distribution. In accordance with an amended operating agreement executed in 2000, Eichenblatt was removed as a member of Piedmont/Maple, but retained the right to receive his share of distributions. In 2005, Piedmont/Maple refinanced the debt on the commercial property, and then began experiencing financial difficulties. Eichenblatt, suspecting mismanagement by KDP, sued Kaufman, KDP, and other related entities claiming, inter alia, that the defendants had mismanaged Piedmont/Maple, breached the amended operating agreement, and ignored their fiduciary responsibilities. Following a jury trial in 2011, Eichenblatt was awarded $625,000 against KDP for breach of the operating agreement. KDP appealed, and this Court affirmed in the First Appeal.\n\nIn September 2012, KDP loaned Piedmont/Maple $3,550,000, allowing Piedmont/Maple to pay off debt on the commercial property which had gone into default. At around the same time, the commercial property, which had been divided into two parcels, was sold in two separate transactions. Following the sale, appellees sought to wind down and terminate Piedmont/Maple. As part of the dissolution, Piedmont/Maple distributed to Eichenblatt $969,609.23, which it had determined to be 40 percent of its total remaining assets, less certain fees and expenses. When Eichenblatt disputed the accuracy of Piedmont/Maple’s calculation and refused to cash the final distribution check, appellees filed the instant action for declaratory judgment to establish the proper dissolution payment. Eichenblatt counterclaimed for breach of contract and breach of fiduciary duty, asserting that KDP and Kaufman had manipulated the member loan to KDP’s advantage and had reduced the value of the commercial property by selling the two parcels separately instead of as an assemblage. Eichenblatt also alleged that KDP and Kaufman leased space in the commercial property to an affiliate, but did not require the affiliate to make rental payments. Eichenblatt sought 40 percent of the unpaid rent, totaling approximately $422,451.\n\nThe Second Appeal arose from appellees’ underlying declaratory judgment action. Appellees moved for summary judgment on Eichenblatt’s counterclaims, and the trial court granted the motion in part. Eichenblatt appealed. Shortly before Eichenblatt filed the Second Appeal with this Court, appellees served an offer of settlement pursuant to OCGA § 9-11-68 on him. Eichenblatt made a counteroffer, which appellees rejected; the parties never reached an agreement.\n\nIn the meantime, this Court reversed the partial grant of summary judgment to appellees and remanded the case back to the trial court.\n\nThe KDP Parties shall pay to Mr. Eichenblatt the aggregate sum of One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00) (the “Settlement Payment”), in exchange for Mr. Eichenblatt dismissing, with prejudice, all counterclaims asserted by Mr. Eichenblatt against the KDP Parties in the above-referenced lawsuit. No amount of this offer (Zero Dollars [$0]) is proposed to settle any claim and/or counterclaim for punitive damages. To the extent that Mr. Eichenblatt seeks to recover attorney[] fees and other expenses, the Settlement Payment includes any and all such attorney[] fees and other expenses. The Settlement Payment shall settle and terminate any and all counterclaims asserted by Mr. Eichenblatt in the above-referenced lawsuit."
  },
  "outcome": {
   "amount": 79065.6,
   "amountIsTheRequestedAmount": false,
   "date": "2021-01-29",
   "description": "At the start of trial KDP confessed judgment of about $79,000 on the unpaid-rent claim; the court directed a verdict against Eichenblatt on the assemblage claims and the jury rejected his remaining fiduciary-duty counterclaim and found the company correctly valued his distribution. Final judgment (May 18, 2018) declared his dissolution share to be the $969,609.23 already tendered and awarded him $79,065.60 for the rent underpayment. That judgment was affirmed in the Third Appeal (2019); the appellees' $837,444.95 fee award under the offer statute was reversed on January 29, 2021.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": "the opposing parties' $837,444.95 offer-of-settlement fee award against Eichenblatt was reversed",
   "appellateChange": "affirmed",
   "finalAmount": 79065.6,
   "finalNote": "Merits affirmed in the 2019 Third Appeal; the fee award against the counterclaimant reversed in 2021."
  },
  "expectedRole": "Shareholder / Plaintiff Class",
  "offers": [
   {
    "by": "defendant",
    "amount": 125000,
    "date": "shortly before the Second Appeal was filed (OCGA 9-11-68 offer by counterclaim-defendants)",
    "quote": "The KDP Parties shall pay to Mr. Eichenblatt the aggregate sum of One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00)"
   }
  ],
  "category": "reit-securities",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "walmart-v-howell-2024",
  "source": {
   "caseName": "Wal-Mart Stores East, LP v. Maria Howell and Oscar Howell",
   "court": "Court of Appeals of Georgia, Third Division",
   "docket": "A23A1198",
   "decided": "2024-03-12",
   "url": "https://storage.courtlistener.com/pdf/2024/03/12/wal-mart_stores_east_lp_v._maria_howell.pdf",
   "excerptNote": "Verbatim from the statement of facts: the fall, the store video and witness, the pre-suit demand and counteroffer, the complaint's medical and wage figures, the removal and remand with its $75,000 limit, the functional capacity evaluation, the June 2020 offer of settlement and the January 2021 demand, the later evidence that an employee caused the spill, and the pre-trial order lifting the $75,000 limit. Removed: the opening paragraph (states the verdict and holding), the standard-of-review paragraph, footnotes 1-6 and the footnote marker '6' after 'OCGA § 9-11-68', the verdict, the post-trial motions, and all analysis."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent Maria Howell and her husband Oscar Howell on their negligence and loss-of-consortium claims against Walmart Stores East, LP after she slipped on WD-40 in an aisle of the Walmart store in Americus, Georgia. The case is set for a jury trial in state court.",
   "documentText": "Maria Howell slipped on WD-40 lubricant and fell on the floor at the Walmart store in Americus, Georgia, on February 27, 2018. Howell completed an incident report on the day of her fall, and upon contacting the store days later, was told that three young female customers had sprayed a substance on the floor where Howell had fallen. Thereafter, Howell contacted the Americus Police Department to inform them of the incident and to provide them with the name of a witness, Justin Redding. The police investigated and obtained a video from the store that captured the incident. The video allegedly showed a young woman removing a spray can off of a shelf and spraying something on the floor at approximately 4:40 p.m., while two other women shielded her from view. Additionally, it showed that approximately 22 minutes before Howell’s fall, a Walmart employee walked with the women to the area where the substance was on the floor, appeared to look at the area, then left it unattended, walking in the opposite direction of the substance. The police report stated that Redding reported that he heard Walmart employees talking about the spill on their radios, that he slipped on the same substance but did not fall, and that he observed a can of WD-40 on the floor at the end of the aisle. The video confirmed Redding’s presence on the aisle where Howell fell approximately 12 minutes before her fall.\n\nBefore the lawsuit was filed, plaintiffs demanded $400,000 to settle the case, and Walmart countered with an offer of $25,000, which plaintiffs rejected. On January 24, 2020, plaintiffs filed their complaint, alleging that Howell sustained severe and permanent injuries to her right shoulder and left hip and incurred medical expenses in the amount of $46,008.41 and lost wages in the amount of $10,000.00. Plaintiffs also sought damages for future medical expenses and loss of consortium. On February 17, 2020, Walmart removed the case to federal court, asserting a complete diversity of citizenship between the parties and relying on the plaintiffs’ $400,000 demand letter to satisfy the damages requirement for federal jurisdiction. The federal court sua sponte issued a show cause order requiring Walmart to establish why the case should not be remanded for failure to establish the required amount of damages for diversity jurisdiction. Walmart responded, relying on the demand letter and reserving its right to remove the case at a later date should the court not find the demand letter to be a reliable indicator of damages. Before the federal court could issue its ruling, plaintiffs filed a motion to remand, arguing that Walmart had failed to prove by a preponderance of the evidence that the amount in controversy exceeded $75,000, as was required. On April 27, 2020, the federal court issued its order remanding the case to state court, and limiting plaintiffs to $75,000 in damages unless the trial judge found that the circumstances had changed since the filing of plaintiffs’ motion to remand.\n\nDiscovery commenced, and on May 18, 2020, Howell submitted to a Functional Capability Evaluation (“FCE”). The FCE showed that Howell’s fall caused her to undergo a right shoulder rotator cuff repair revision surgery in August 2018, and to obtain physical therapy and injections for a left hip injury. The FCE concluded that she had lingering disorders of both areas of her body, with range of motion restrictions and weakness in her right shoulder, significant difficulty performing repetitive motions, overhead reaching, and material handling with her upper extremity, continued left hip weakness that impaired her walking ability and did not allow her to lift objects from ground level, and that she qualified for a Department of Labor sedentary physical demand work category. In June 2020, Walmart extended an offer of settlement to plaintiffs pursuant to OCGA § 9-11-68 in the amount of $101,000, to which plaintiffs did not respond. Plaintiffs demanded $385,000 to settle the case in January 2021.\n\nLater in 2021, after the court extended discovery, plaintiffs filed a motion to compel Walmart to identify the employees working on the shift before and after Howell’s fall, which the trial court granted. Thereafter, additional evidence came to light that challenged Walmart’s initial theory that customers spilled the substance on the floor. Redding, the customer who was interviewed by the police officers, provided an affidavit in which he averred that the spill was caused by a leaking box of WD-40 dropped by a Walmart employee who was restocking shelves. Redding further averred that he brought the spill to the attention of the employee carrying the box and to a second Walmart employee prior to Howell’s fall.\n\nIn April 2022, after the case had been placed on a trial calendar, Walmart filed a motion to limit plaintiffs’ damages to $75,000 based on the federal remand order. Plaintiffs opposed the motion, arguing, among other things, that a change in circumstances authorized them to seek damages in excess of $75,000. The trial court denied Walmart’s motion, finding that there had been a sufficient change in circumstances to allow plaintiffs to pursue damages in excess of $75,000. The court went on to explain that its decision was based on the totality of the circumstances and in consideration of (1) the FCE, (2) the post suit settlement offers exchanged between Plaintiff and Defendant, each of which were in excess of $75,000, and lastly, (3) the factual dispute that was revealed during discovery as to whether or not an independent third party was responsible for the discharge of WD-40 on the floor or if a Wal-Mart employee was responsible for its presence there. The court wrote that it was “persuaded that the twist in facts ascertained through discovery following remand could affect the jury’s determination as to the apportionment of fault/damages and thus the overall recovery amount at trial.”"
  },
  "outcome": {
   "amount": 300000,
   "amountIsTheRequestedAmount": false,
   "date": "2024-03-12",
   "description": "The jury awarded the plaintiffs $300,000; the trial court denied Walmart's motion for JNOV (to cut the award to $75,000 under the federal remand order) or new trial. The Court of Appeals affirmed on March 12, 2024, holding the trial court did not abuse its discretion in declining to apply judicial estoppel. The opinion notes no judgment had yet been entered on the verdict. No attorney's fees.",
   "attorneysFeesAtTrial": null,
   "appellateChange": "affirmed",
   "finalAmount": 300000,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Injured Party / Claimant",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 400000,
    "date": "before suit was filed (demand)",
    "quote": "Before the lawsuit was filed, plaintiffs demanded $400,000 to settle the case, and Walmart countered with an offer of $25,000, which plaintiffs rejected."
   },
   {
    "by": "defendant",
    "amount": 25000,
    "date": "before suit was filed (counteroffer)",
    "quote": "Before the lawsuit was filed, plaintiffs demanded $400,000 to settle the case, and Walmart countered with an offer of $25,000, which plaintiffs rejected."
   },
   {
    "by": "defendant",
    "amount": 101000,
    "date": "June 2020 (OCGA 9-11-68 offer of settlement)",
    "quote": "In June 2020, Walmart extended an offer of settlement to plaintiffs pursuant to OCGA § 9-11-686 in the amount of $101,000, to which plaintiffs did not respond."
   },
   {
    "by": "plaintiff",
    "amount": 385000,
    "date": "January 2021 (demand)",
    "quote": "Plaintiffs demanded $385,000 to settle the case in January 2021."
   }
  ],
  "category": "premises-liability",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "exhibit-source-v-wells-avenue-2018",
  "source": {
   "caseName": "The Exhibit Source, Inc. v. Wells Avenue Business Center, LLC",
   "court": "Massachusetts Appeals Court, on appeal from the Appellate Division of the Boston Municipal Court (Central Division)",
   "docket": "No. 17-P-1611 (94 Mass. App. Ct. 497)",
   "decided": "2018-11-20",
   "url": "https://storage.courtlistener.com/pdf/2018/11/20/the_exhibit_source_inc._v._wells_avenue_business_center_llc.pdf",
   "excerptNote": "Verbatim from the Background (the lease, the security-deposit clause, the walk-through, the partial return and retention, the complaint, the landlord's pre-answer offer and footnote 1), the lease's limitation-of-liability clause quoted in Discussion 3, and the sentence listing the landlord's three settlement offers. Removed: the opening paragraph (states the verdict, c. 93A finding and treble award), the sentence 'As the trial judge found, the defendant landlord failed to fulfill its obligations with respect to the security deposit', the footnote 1 marker, the jury verdict, remittitur, c. 93A findings and award, the Appellate Division's ruling and fees, footnote 4, and all analysis."
  },
  "input": {
   "userSide": "sideB",
   "expectToTrial": "True",
   "description": "We represent the commercial tenant, The Exhibit Source, Inc., on its claims against its former landlord Wells Avenue Business Center, LLC for breach of contract, breach of the implied covenant, conversion, misrepresentation and G. L. c. 93A, section 11 over the landlord's retention of most of its security deposit. The case is set for trial in the Boston Municipal Court, with the c. 93A claim to be decided by the judge.",
   "documentText": "Exhibit Source and Wells entered into a commercial lease (lease) pursuant to which Exhibit Source provided a security deposit of $15,982. The lease terminated August 31, 2013. The lease expressly required the defendant landlord to return the security deposit \"[w]ithin thirty (30) days\" of lease termination, except that the landlord could \"apply\" the security deposit to compensate for damages suffered as a result of a \"Tenant Default.\" \"Tenant Default,\" in turn, was a defined term; as discussed below, the only \"tenant default\" that could possibly apply to the facts here was in lease section 16.1(d) -- \"failure by Tenant to fulfill any other obligation under this lease, if such failure is not cured within twenty (20) days of notice from Landlord to Tenant . . .\" (emphasis supplied).\n\nThe plaintiff tenant vacated the premises as of August 31, 2013. Representatives of the landlord and the tenant walked through the premises on September 4, 2013. The landlord's representative did not raise any issue as to the condition of the premises at that time, or indeed for the next seven months. Starting in October of 2013 the plaintiff repeatedly requested the return of the security deposit. A representative of the landlord represented several times that the full amount would be forthcoming. That did not happen. Eventually, on April 1, 2014, the landlord returned $1,202.28 of the deposit, and retained $14,780. The landlord claimed the $14,780 was for damage to the property, allegedly caused when the tenant removed certain shelving and signage upon leaving in August of 2013. The alleged damage would have been visible during the September 4, 2013, walk-through. At no time prior to April 1, 2014, did the landlord provide notice to the tenant of any damage, and the landlord never provided an opportunity to cure as contemplated by the lease.\n\nThe plaintiff filed suit on May 6, 2014, and asserted claims for breach of contract, breach of the implied covenant of good faith, conversion, misrepresentation, and violations of G. L. c. 93A, § 11. The landlord did not make a settlement offer when it filed its answer on May 30, 2014, although it had offered $6,000 around the time that the tenant filed suit.\n\nAs discussed infra, the landlord did increase its settlement offers as the litigation proceeded.\n\n\"In no event will Landlord be liable for punitive damages, lost profits, business interruption, speculative consequential or other such damages.\"\n\nSpecifically, the defendant points to (1) an offer of $6,000, which it made around the time the complaint was filed on May 6, 2014; (2) an offer of $14,780, which it made on June 20, 2014, some twenty days after it filed its answer; and (3) an offer of $22,000, which it made on August 7, 2014."
  },
  "outcome": {
   "amount": 44340,
   "amountIsTheRequestedAmount": false,
   "date": "2018-11-20",
   "description": "The jury found for the tenant on the common-law claims and awarded $25,366.70, which the judge remitted to $14,780; the judge separately found a knowing c. 93A violation, set actual damages at the $14,780 retained, trebled them to $44,340, and awarded $60,511.74 in attorney's fees and costs, rejecting the landlord's argument that its offers were reasonable. The Appellate Division affirmed and added $30,100 in appellate fees; the Appeals Court affirmed on November 20, 2018 and allowed further appellate fees.",
   "attorneysFeesAtTrial": 60511.74,
   "attorneysFeesOnAppeal": "affirmed; $30,100 more awarded by the Appellate Division and further appellate fees allowed",
   "appellateChange": "affirmed",
   "finalAmount": 44340,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Tenant",
  "offers": [
   {
    "by": "defendant",
    "amount": 6000,
    "date": "around 2014-05-06 (when complaint filed)",
    "quote": "an offer of $6,000, which it made around the time the complaint was filed on May 6, 2014;"
   },
   {
    "by": "defendant",
    "amount": 14780,
    "date": "2014-06-20",
    "quote": "an offer of $14,780, which it made on June 20, 2014, some twenty days after it filed its answer;"
   },
   {
    "by": "defendant",
    "amount": 22000,
    "date": "2014-08-07",
    "quote": "an offer of $22,000, which it made on August 7, 2014."
   }
  ],
  "category": "lease-disputes",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "caltrans-v-acosta-2009",
  "source": {
   "caseName": "People ex rel. Department of Transportation v. Mercedes Acosta and Hammer 99, Inc.",
   "court": "California Court of Appeal, Third Appellate District",
   "docket": "C059064 (178 Cal.App.4th 762)",
   "decided": "2009-10-26",
   "url": "https://static.case.law/cal-app-4th/178/cases/0762-01.json",
   "excerptNote": "Verbatim from Facts and Proceedings, from the filing of the condemnation through the denial of Caltrans's motion in limine (the franchise and sublease, the PMPA demurrers, the BP and owner settlements, the BP assignment, the summary-adjudication ruling, the final demand and final offer), and two sentences from Part III giving each side's appraisal of the goodwill. Removed: the introduction (states the stipulated judgment and holdings), the March 2008 stipulated judgment and everything after it in Facts and Proceedings, the litigation-expense ruling and amounts, the trial court's reasonableness findings, and all other analysis. Source text is the Caselaw Access Project copy of the official report (no court-hosted PDF for this 2009 opinion; CourtListener opinion 2260340). The reviewer should confirm the source URL resolves; the saved text is the CAP case body."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent Mercedes Acosta and Hammer 99, Inc., the franchisee operator of a BP gas station and minimart on property Caltrans is condemning for a highway interchange expansion, on their claim for loss of business goodwill under Code of Civil Procedure section 1263.510. Caltrans contends the claim is preempted by the federal Petroleum Marketing Practices Act. The case is headed to trial in eminent domain.",
   "documentText": "On July 22, 2003, Caltrans filed a complaint in eminent domain to condemn property for the expansion of a highway interchange. Named as a defendant was Scannavino Properties I (Scannavino), the owner of the property. The complaint was later amended to add BP West Coast Products LLC (BP) and Acosta as defendants. BP leased the subject premises from Scannavino, and Acosta subleased the premises from BP. Acosta also maintained a franchise relationship with BP to operate a gas station and minimart on the premises. On February 3, 2004, Acosta filed an answer to the complaint. On February 12, BP served upon Acosta a notice of termination of the franchise and sublease. In the notice, BP informed Acosta that, in the event it received goodwill damages in the condemnation proceeding, it would apportion those damages between itself and Acosta. Acosta thereafter amended its answer to include a claim for lost goodwill. Caltrans filed a demurrer and motion to strike Acosta’s answer, asserting the goodwill claim is preempted by the PMPA. The trial court, with Judge Saiers presiding, sustained the demurrer without leave to amend. Acosta filed a motion for reconsideration and requested leave to amend. The trial court granted the motion and modified its order to allow leave to amend. Acosta filed a second amended answer in which it asserted a right to goodwill damages under both section 1263.510 and the PMPA. Caltrans again filed a demurrer and motion to strike based on federal preemption, and Judge Saiers again sustained the demurrer without leave to amend. Caltrans and BP entered into a stipulation for entry of judgment whereby Caltrans agreed to pay BP $575,000 plus $100,000 for the removal of certain underground equipment. The trial court entered judgment accordingly. Caltrans also paid Scannavino $550,000 on its claims in the proceeding. On September 27, 2005, BP assigned to Acosta whatever rights it might have to goodwill damages in the condemnation proceeding. Acosta moved for leave to file a third amended answer, and the trial court granted the motion. In the third amended answer, Acosta asserted as a further basis for the recovery of goodwill damages the assignment by BP. Caltrans again demurred and moved to strike the amended answer. However, this time Judge McNatt overruled the demurrer. On November 8, 2006, Caltrans moved for summary adjudication of Acosta’s goodwill claim. Caltrans argued Acosta’s independent right to goodwill damages is preempted by the PMPA, and BP has no goodwill claim to assign to Acosta because such claim was included in the stipulated judgment between Caltrans and BP. On February 8, 2007, Judge Holly denied the motion for summary adjudication, concluding the PMPA does not preclude assignment of goodwill claims by a franchisor to a franchisee and there is a question of fact whether the stipulated judgment between Caltrans and BP was intended to include goodwill damages. On February 13, 2007, Acosta filed a final demand for compensation in the amount of $705,000. Two days later, Caltrans submitted a final offer of compensation in the amount of $150,000. Caltrans filed a motion in limine to exclude evidence of goodwill damages. Judge Holly denied the motion.\n\nCaltrans’s appraiser arrived at a value of $678,000, while Acosta’s appraiser put the value at $731,000. The dispute all along was over whether Acosta was entitled to recover goodwill damages in light of the PMPA."
  },
  "outcome": {
   "amount": 704500,
   "amountIsTheRequestedAmount": false,
   "date": "2009-10-26",
   "description": "After the court denied Caltrans's summary-adjudication motion and its motion in limine to exclude goodwill evidence, Caltrans and Acosta stipulated (March 26, 2008) to judgment of $704,500 on the goodwill claim, reserving Caltrans's right to appeal issues of law; the court entered judgment as stipulated and awarded Acosta $288,537.75 in litigation expenses and expert fees under section 1250.410 (final demand $705,000 reasonable, final offer $150,000 unreasonable). The Third District affirmed both on October 26, 2009, holding the goodwill claim is not preempted by the PMPA. This is a stipulated judgment, not a verdict.",
   "attorneysFeesAtTrial": 288537.75,
   "attorneysFeesOnAppeal": "affirmed",
   "appellateChange": "affirmed",
   "finalAmount": 704500,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "defendant",
    "amount": 705000,
    "date": "2007-02-13 (CCP 1250.410 final demand)",
    "quote": "On February 13, 2007, Acosta filed a final demand for compensation in the amount of $705,000."
   },
   {
    "by": "plaintiff",
    "amount": 150000,
    "date": "2007-02-15 (CCP 1250.410 final offer)",
    "quote": "Two days later, Caltrans submitted a final offer of compensation in the amount of $150,000."
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "inglewood-v-aklilu-2007",
  "source": {
   "caseName": "Inglewood Redevelopment Agency v. Elias Aklilu, d/b/a Auto Inn Lube and Oil",
   "court": "California Court of Appeal, Second Appellate District, Division Three",
   "docket": "B185107 (153 Cal.App.4th 1095)",
   "decided": "2007-07-30",
   "url": "https://static.case.law/cal-app-4th/153/cases/1095-01.json",
   "excerptNote": "Verbatim from Facts and Procedural Background parts 1 (redevelopment plan, condemnation, settlements with the fee owners and the subtenant, the demand and the offer) and 2.a-2.c (Aklilu's testimony, his business-valuation expert, the Agency's expert). Removed: the Summary (states the verdict and holdings), part 2.d (jury instructions), part 2.e (verdict and fixtures allocation), part 3 (post-verdict proceedings), and all analysis. Source text is the Caselaw Access Project copy of the official report (no court-hosted PDF for this 2007 opinion; CourtListener opinion 2250303). The reviewer should confirm the source URL resolves; the saved text is the CAP case body."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": "True",
   "description": "We represent Elias Aklilu, doing business as Auto Inn Lube and Oil, the tenant operator of an oil-change business at 3300 West Century Boulevard in Inglewood that the Inglewood Redevelopment Agency is condemning for a redevelopment plan, on his claim for compensation for loss of business goodwill under Code of Civil Procedure section 1263.510. The case is set for a jury trial on compensation.",
   "documentText": "In 1981, the City of Inglewood (the City) adopted a redevelopment plan for the Century Redevelopment Project, which merged in 1996 with other redevelopment plans operated by the Agency. The real property at 3300 West Century Boulevard (the property) is located in the Merged Century Redevelopment Project Area. In 1998 the City created the “Village Specific Plan” to revitalize the area previously known as Darby Dixon. The area was blighted and had the highest crime rate in the City. On June 10, 2003, the city council, sitting as board of directors for the Agency, adopted a resolution of necessity authorizing the condemnation of the property. On October 22, 2003, the Agency filed a complaint in eminent domain against the Nixes, Aklilu and Aklilu’s subtenant, Ha Nguyen, who operated VN Smog Test Only on the premises. Nguyen cross-complained against Aklilu for damages based on Aklilu’s asserted failure to disclose to Nguyen the impending condemnation proceedings when Nguyen entered into the sublease with Aklilu. Prior to trial, the Agency settled with the Nixes in the amount of $665,475 for the real property, plus $34,525 for the improvements. The Agency settled with Nguyen in the amount of $35,000 for lost goodwill. As part of this settlement, Aklilu paid Nguyen $2,000 and Nguyen dismissed his cross-complaint against Aklilu and waived discovery sanctions in the amount of $2,281.60, which the trial court had awarded in favor of Nguyen against Aklilu’s attorney. Prior to trial, Aklilu demanded $355,668 consisting of $239,000 for lost goodwill, $31,095 for improvements to the real property, and $85,573 for “moveable equipment.” The Agency offered Aklilu $35,000 for lost goodwill.\n\nAklilu came to this country in 1974, received a degree in automotive technology in 1976 and worked for two different BMW dealerships from 1976 until 1985 when he opened an automotive repair business in Beverly Hills. In 1997, Aklilu leased the property from the Nixes. Aklilu testified the location was excellent and large retailers were interested in the area. Aklilu thought it would take three to five years for the business to become successful. The lease had an option to renew for five years that included a right of first refusal if the Nixes decided to sell. Aklilu was aware the leased property was in a redevelopment area. However, he was led to believe his business would be relocated in the redevelopment area. Construction of the Marketplace at Hollywood Park, across the street from Auto Inn, caused disruption of Aklilu’s business in 1999 through 2002. The Nixes excused some of Aklilu’s lease payments because construction resulted in lack of access to the property and airborne debris. Toward the end of 2002, Aklilu exercised the option to renew the lease at a rent of $2,200 per month. In 2003, a major portion of the Marketplace at Hollywood Park was completed and traffic flow returned to normal. The development included a Home Depot and a Target. Aklilu testified that, as a result of these improvements, “my location became fantastic, which I was waiting, praying for.” Auto Inn became profitable in 2003.\n\nChris Pedersen, a certified business appraiser and a former business broker who has qualified as a business valuation expert approximately 100 times, became involved in this case when Aklilu was close to eviction and was in the process of trying to relocate his business within the project area. Pedersen’s investigation revealed Auto Inn was in “as fine a location as I’ve ever seen for this type of a business.” The business had “outstanding exposure to the street, as well as the [destination] shopping centers across the street.” Access and parking were excellent and there was no competition from any similar business. A smaller development might include two businesses similar to Aklilu’s. Here, there was only one for the entire development. Pedersen opined the business had a “very, very promising future” with “lease, location, product, no competition, new area. ... I don’t even think a fluctuation in the economy would have had any impact on it over the next four or five years.” In appraising the value of Auto Inn’s goodwill, Pedersen used a “cost to create” approach. Pedersen testified cost frequently is the only provable value for a product or a business. “And that tends to be a minimal value, but it is an identifiable value.” When asked about the lack of profits from 1999 through 2002, Pedersen testified the “business is obviously going to do very well and sales and profit had jumped up dramatically when they stopped all the construction. And ... the business obviously is a good concern.” Pedersen appraised Auto Inn’s goodwill based on Aklilu’s income tax returns for the years 1998 through 2003. Pedersen made adjustments to these figures to reflect an owner’s annual salary of $24,000, plus a 12 percent return on tangible assets, and concluded Auto Inn had adjusted annual losses of $35,000, $37,000, $49,000, $53,000, $52,000 and $12,000 in the years 1998 through 2003, for a total loss of $238,716. By combining the value of the goodwill and the value of the fixtures and equipment ($171,510), Pedersen opined Auto Inn, which consisted of the location and the lease, including the right of first refusal, had a total value of $410,271. Pedersen testified that, within a matter of days, Auto Inn could have been sold for the value Pedersen placed on it. Pedersen believed a prospective buyer would accept a valuation of the business based on the cost Aklilu had expended over the five previous difficult years to place the business in the enviable position it enjoyed upon completion of the Marketplace. Pedersen did not use the income approach to appraise Auto Inn’s goodwill because it was not yet applicable to Aklilu’s business and he did not use the market approach because it is rarely used for a small business due to a lack of comparables. Pedersen previously used the “cost to create” approach to value a morphing technology used in the movie The Howling (AVCO Embassy Pictures 1981) and the formula for the Tiger’s Milk bar. Pedersen saw no evidence Aklilu acted unreasonably as a businessman.\n\nMadeleine Mamaux, a chartered financial analyst and business appraiser employed by Desmond, Marcello & Amster, testified goodwill is an intangible asset that manifests itself in the profitability of a business. Mamaux used three methods of valuation to appraise Auto Inn’s goodwill, namely, capitalization of the excess operating profit, the discretionary cash flow multiplier method and the revenue multiplier method. Mamaux concluded Auto Inn had no goodwill as of October 22, 2003, under any of the three methods because the business was not profitable. In the capitalization of excess operating profit and discretionary cash flow methods, Mamaux subtracted from profit the fair market rent of the property, which Mamaux referred to as the economic rent, in the amount of $4,898 per month, as opposed to the $2,200 per month Aklilu actually paid under his lease. Mamaux did this to eliminate the value of AHilu’s advantageous lease from her computation of the goodwill. However, even if Mamaux did not adjust Auto Inn’s expenses to reflect economic rent, she still would have concluded the business had no goodwill. Mamaux has never valued goodwill using the “cost to create” approach, which typically is used to value intangible assets like patents and trademarks. On cross-examination, Mamaux conceded she worked under the supervision of Glenn M. Desmond, the founder of her firm, in two of the three trials at which she had qualified as an expert. Mamaux also conceded there may be “some unusual exceptions” to the rule that goodwill must manifest itself in profits. Finally, Mamaux conceded Auto Inn had the “potential for the acquisition of new patronage” at its Century Boulevard location."
  },
  "outcome": {
   "amount": 200000,
   "amountIsTheRequestedAmount": false,
   "date": "2007-07-30",
   "description": "The jury found Aklilu suffered lost goodwill of $200,000 (his expert said $238,716; the Agency's said none). In a separate proceeding the court apportioned $4,265 of the $34,525 paid for fixtures and equipment to Aklilu (not included here), denied his motion for litigation expenses, and gave the Agency a setoff against interest for post-possession rent. The Second District affirmed on July 30, 2007 (rehearing denied and opinion modified August 20, 2007), approving the 'cost to create' goodwill valuation.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 200000,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 35000,
    "date": "prior to trial (offer for lost goodwill)",
    "quote": "The Agency offered Aklilu $35,000 for his lost goodwill."
   },
   {
    "by": "defendant",
    "amount": 355668,
    "date": "prior to trial (total demand: $239,000 goodwill, $31,095 improvements, $85,573 moveable equipment)",
    "quote": "Prior to trial, Aklilu demanded $355,668 consisting of $239,000 for lost goodwill, $31,095 for improvements to the real property, and $85,573 for “moveable equipment.”"
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "mdha-v-nashville-downtown-platinum-2017",
  "source": {
   "caseName": "Metropolitan Development and Housing Agency v. Nashville Downtown Platinum, LLC",
   "court": "Court of Appeals of Tennessee at Nashville, on appeal from the Circuit Court for Davidson County (No. 09C-3638)",
   "docket": "No. M2017-00450-COA-R3-CV",
   "decided": "2017-12-08",
   "url": "https://storage.courtlistener.com/pdf/2017/12/08/metropolitan_development_and_housing_agency_v._nashville_downtown_platinum.pdf",
   "excerptNote": "Verbatim from Background and Procedural History (purchase, petition and deposit, the imminent CF-to-DTC rezoning, the jury of view's interim award and Platinum's appeal for a de novo jury trial), the description of MDHA's motion in limine against the architect's 40-story drawings and the passage from Platinum's appraiser's report, and footnote 6's statement of each side's appraisal per square foot and the Poe zoning-timing point. Removed: the summary paragraph (verdict 'over $2,000,000'), the sentence stating the jury's verdict, the judgment and new-trial rulings, the court's rulings on every evidentiary issue, the sentences giving the $63-per-square-foot verdict and comparing it to the appraisals, the construal of Poe's testimony as $65 per square foot, footnote markers and the PDF date footer. The opinion never states the parcel's square footage."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owner, Nashville Downtown Platinum, LLC, whose downtown Nashville parcel was condemned in full by the Metropolitan Development and Housing Agency for the Music City Center. The owner rejected the jury of view's award and the case is set for a de novo jury trial on just compensation.",
   "documentText": "In 2007, the Appellant Nashville Downtown Platinum, LLC (“Platinum”) purchased real property (“the Property”) in downtown Nashville for $1,400,000.00. Although the Property was being used as a surface parking lot at the time of Platinum’s purchase, Platinum claimed to have plans to build a hotel on the Property. Such plans never came to fruition.\n\nOn October 16, 2009, the Metropolitan Development and Housing Agency (“MDHA”) filed a petition in the Davidson County Circuit Court to condemn Platinum’s property in order to develop the Nashville Music City Center. In connection with its petition for condemnation, MDHA deposited the sum of $1,774,300.00 as an estimate of the just compensation that would be owed. In a subsequently-filed answer, Platinum denied that the amount deposited by MDHA represented just compensation for the proposed taking. Platinum prayed that the petition for condemnation be dismissed, or in the alternative, that a jury of view be empaneled to determine the amount of compensation owed. By an agreed order entered on February 2, 2010, MDHA was granted exclusive possession of the Property effective January 29, 2010. At the time of the taking, the Property was zoned “CF,” a category that imposed a height restriction of approximately seven stories for buildings. However, it is undisputed that it was widely known at the time of the taking that a change from “CF” zoning to “DTC” zoning was imminent. Under “DTC” zoning, buildings can be at least 30 stories tall.\n\nAlthough the trial court’s February 2, 2010 taking order authorized the clerk to disburse to Platinum the deposit that had been tendered by MDHA, the order further provided that the disbursement of the deposit was “without prejudice to Platinum’s claim for additional just compensation.” Following MDHA’s taking of the Property, the parties filed a joint motion for a writ of inquiry, and a jury of view was subsequently appointed to assess the amount of compensation owed to Platinum. After hearing testimony and evidence from both parties, the jury of view ultimately determined that the amount due to Platinum was $2,306,590.00. Although Platinum filed objections to the report of the jury of view, the trial court confirmed the report by order entered on January 26, 2015. Following the trial court’s confirmation of the jury of view’s report, Platinum filed an appeal requesting a de novo jury trial pursuant to Tennessee Code Annotated section 29-16-118. A number of pre-trial matters soon ensued, including the filing of several motions in limine. After these pre-trial matters were resolved, a trial was held over the course of several dates in August 2016.\n\nBecause rezoning had been imminent at the time of taking, Platinum desired to have its architect Michael Gardner present demonstrative exhibits depicting two buildings over 40 stories each in order to show the size of structures that could have been legally built on the Property under the limits of “DTC” zoning. MDHA opposed these efforts. Prior to trial, on July 22, 2016, MDHA filed a motion in limine to exclude the drawing depictions Mr. Gardner had created. According to MDHA, Mr. Gardner’s drawings would overemphasize a particular use for the Property. Moreover, by citing to Mr. Gardner’s deposition, MDHA noted that Mr. Gardner had not determined whether the buildings he had depicted were even feasible from an engineering or financial perspective. With respect to the feasibility of constructing the structures drawn by Mr. Gardner, MDHA observed that Mr. Gardner had acknowledged that geotechnical and structural engineers would need to determine whether towers of the size depicted could actually be built on the Property. MDHA further supported its argument by citing to the report of Platinum’s appraiser, Jack Poe, wherein Mr. Poe stated as follows: Based on . . . the state of economy in 2010, a typical investor may not maximize the allowable height as described by Michael Gardner AIA, but would exceed the seven story 226 room Aloft Hotel design (with 220 parking spaces) submitted by DW architects that was based on CF zoning on Parcels 106 and 107 prior to the date of appraisal. In other words, I think the maximally productive use of the site would be to build a 20+ story hotel building based on the 42 story concept provided by Michael Gardner AIA.\n\nIn this case, the highest appraisal tendered by MDHA was from Mr. Boozer, who valued the Property at $60 per square foot. Platinum’s appraiser, Mr. Poe, valued the Property at $130 per square foot. Indeed, Mr. Poe’s appraisal was based as of February 2, 2010 and specifically accounted for his opinion that the passage of “DTC” zoning had caused property values to double, “virtually overnight.” The ordinance pertaining to “DTC” zoning passed its final reading on February 2, 2010, and Mr. Poe agreed that it was a fair construal of his testimony to say that property values doubled sometime during the week of February 2. Here, of course, the date of taking was January 29, 2010."
  },
  "outcome": {
   "amount": 2032380,
   "amountIsTheRequestedAmount": false,
   "date": "2017-12-08",
   "description": "After an August 2016 de novo jury trial the jury found the fair market value of the Property at the taking was $2,032,380 (the court describes it as $63 per square foot, against MDHA's highest appraisal of $60 and Platinum's $130 per square foot), below the jury of view's $2,306,590 and above MDHA's $1,774,300 deposit; the trial court entered judgment on the verdict, denied a new trial and awarded MDHA discretionary costs. The Tennessee Court of Appeals affirmed on December 8, 2017. No attorney's fees.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 2032380,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "condemnor",
    "amount": 1774300,
    "kind": "deposit",
    "quote": "MDHA deposited the sum of $1,774,300.00 as an estimate of the just compensation that would be owed."
   },
   {
    "by": "commissioners",
    "amount": 2306590,
    "kind": "interim award (jury of view)",
    "quote": "the jury of view ultimately determined that the amount due to Platinum was $2,306,590.00."
   },
   {
    "by": "condemnor",
    "amount": null,
    "kind": "appraisal",
    "quote": "the highest appraisal tendered by MDHA was from Mr. Boozer, who valued the Property at $60 per square foot.",
    "perSqFt": 60
   },
   {
    "by": "owner",
    "amount": null,
    "kind": "appraisal",
    "quote": "Platinum’s appraiser, Mr. Poe, valued the Property at $130 per square foot.",
    "perSqFt": 130
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "caltrans-v-hansens-truck-stop-2015",
  "source": {
   "caseName": "The People ex rel. California Department of Transportation v. Hansen's Truck Stop, Inc., et al.",
   "court": "California Court of Appeal, First Appellate District, Division Four, on appeal from Humboldt County Superior Court (No. DR 070923)",
   "docket": "A133252",
   "decided": "2015-04-24",
   "url": "https://storage.courtlistener.com/pdf/2015/04/24/p._ex_rel._ca_dept._transp._v._._hansens_truck_stop.pdf",
   "excerptNote": "Verbatim from the introduction (the one sentence giving the first statutory offer and demand, and the bifurcation sentences) and Part I, Factual and Procedural Background, through the State's motion to overrule the owners' objection to its partial acceptance. Removed: the introduction's sentences describing the verdict and its ratio to the demand and offer; the sentence itemizing the first $5 million demand (its $2.5 million goodwill component matches the leak guard's rounded form of the $2,533,122 verdict, so the total is kept only from the introduction); the special verdict and judgment sentences; the litigation-expense motion and ruling; the statutory discussion and all holdings; footnotes and markers. The appeal concerned only litigation expenses; the verdict was not disturbed."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owners, Hansen's Truck Stop, Inc. and the Hansen family trust, in Caltrans' condemnation of part of their truck-stop parcel for a highway interchange, including claims for impairment of access and loss of business goodwill. The court has held the owners may pursue the access and goodwill damages, and the case is set for a jury trial on the amount of compensation.",
   "documentText": "In this eminent domain action, the proceedings were bifurcated. A statutory offer and demand ($784,000 and $5 million, respectively) were made prior to the first trial. In that trial the court was asked to decide whether the property owners could pursue damage claims for impairment of access and loss of goodwill as a result of the condemnation. The property owners prevailed. Prior to the second trial the property owners made an amended, much lower demand, but the condemning agency made no new offer.\n\nIn December 2007, the State of California (the State), through its Department of Transportation, filed a complaint in eminent domain, seeking to condemn a portion of a larger parcel owned by the Hansens, for the purpose of building a highway interchange. The Hansens operated a truck stop on the larger parcel. The Hansens filed answers that included claims for additional compensation due to the impairment of highway access and the loss of goodwill in their business resulting from the condemnation and the construction project. Trial was set for March 2009. Two months prior to the trial date the State filed a motion to bifurcate the proceedings, seeking separate adjudication of the Hansens’ alleged entitlement to seek damages for impairment of access and loss of goodwill. The court granted the bifurcation request, and ordered that “[t]he jury phase of the trial, to determine the amount of just compensation . . . shall immediately follow the court phase of the trial.”\n\nPrior to the March 2009 trial date, the State filed its “Final Offer of Compensation” pursuant to Section 1250.410, offering a total of $784,000, excluding interest and costs. After several continuances, the court trial on the bifurcated issues was scheduled for September 2, 2009, and the jury trial on compensation was set for an estimated start date of September 17. The bench trial went forward in September, but the court did not issue its decision until October. It ruled that the Hansens “ha[d] proven entitlement to the benefits of the goodwill statute for not only substantial impairment of access and loss of visibility and exposure, but also for impairment of the internal use of [their] property.”\n\nThe jury trial on compensation was set for February 22, 2010, but was continued by agreement of the parties to April 19, 2010. Twenty days before the continued trial date, the Hansens filed a second “Final Demand for Compensation.” The new demand was for $2.99 million, comprised of $570,000 for the take, $200,000 for goodwill, $340,000 for loss of tangible property and $1.88 million for severance damages. The State did not file a new offer, but did file an acceptance of only the goodwill portion of the new demand, in the amount of $200,000. The Hansens opposed the acceptance, stating they had no intention of separately settling the component parts of their demand. The State moved for an order overruling the Hansens’ objection, arguing that it had served “a valid and operable acceptance of defendants’ March 30, 2010, revised statutory demand for goodwill compensation,” and that elimination of the goodwill issue will significantly shorten the trial and thus “fulfill the intent and purpose of eminent domain settlement offer/demand procedures (Code Civ. Proc. § 1250.410).” The court denied the State’s motion. After two more continuances, the jury trial finally commenced on January 18, 2011."
  },
  "outcome": {
   "amount": 2533122,
   "amountIsTheRequestedAmount": false,
   "date": "2015-04-24",
   "description": "On February 9, 2011 the Humboldt County jury returned a special verdict of $525,122 for the land and improvements, $300,000 for loss of goodwill, $8,000 for a vegetation easement and about $1.7 million for damages to the remainder; total judgment $2,533,122 exclusive of interest (about 85% of the owners' amended $2.99 million demand and more than three times the State's $784,000 offer). The trial court denied the owners' $345,306 litigation-expense motion; the Court of Appeal vacated that order and remanded on April 24, 2015. The verdict itself was not appealed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "none",
   "finalAmount": 2533122,
   "finalNote": "Verdict undisturbed; only the litigation-expense order was vacated and remanded (owners sought $345,306)."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "condemnor",
    "amount": 784000,
    "kind": "settlement offer (CCP 1250.410 final offer)",
    "quote": "the State filed its “Final Offer of Compensation” pursuant to Section 1250.410, offering a total of $784,000, excluding interest and costs."
   },
   {
    "by": "owner",
    "amount": 5000000,
    "kind": "demand (CCP 1250.410 final demand, first)",
    "quote": "The Hansens simultaneously filed their “Final Demand for Compensation” in the sum of $5 million comprised of $600,000 for the property being taken (“the take”), $1.9 million as “severance damages”"
   },
   {
    "by": "owner",
    "amount": 2990000,
    "kind": "demand (CCP 1250.410 final demand, amended)",
    "quote": "The new demand was for $2.99 million, comprised of $570,000 for the take, $200,000 for goodwill, $340,000 for loss of tangible property and $1.88 m"
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "san-francisco-v-pcf-acquisitionco-2015",
  "source": {
   "caseName": "City and County of San Francisco v. PCF Acquisitionco, LLC, et al.",
   "court": "California Court of Appeal, First Appellate District, Division Three, on appeal from San Francisco Superior Court (No. CGC11507339)",
   "docket": "A139836",
   "decided": "2015-05-26",
   "url": "https://storage.courtlistener.com/pdf/2015/05/26/city_and_county_of_s.f._v._pcf_acquisitionco_ca13.pdf",
   "excerptNote": "Verbatim from the Background (the property, the range of exchanged valuations, the City's contingent final offer, PCF's final demand and the two disputed value drivers). Removed: the introduction and holding; the sentence stating the jury's total compensation, fair market value and remediation deduction; the litigation-expense motion and the trial court's ruling (which states the City's final offer exceeded its own appraisal by $1,872,000); the discussion and disposition; footnotes. The PDF renders quotation marks as odd glyphs, which are kept as extracted. The appeal concerned only litigation expenses; the verdict was not disturbed."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owners, PCF Acquisitionco, LLC and Convenience Retailers, in the City and County of San Francisco's condemnation of their former gas-station site at 4th and Folsom Streets for the Central Subway's Moscone station. Settlement failed and the case is set for a jury trial on just compensation.",
   "documentText": "Prior to this action, PCF was the owner of real property at the corner of 4th and Folsom Streets in San Francisco. Formerly a gas station, the site is the future site of the Central Subway‘s Moscone station. Following several years of negotiations and the exchange of proposed valuations for the property ranging from a low of $3,800,000 (from the City, on January 7, 2010) to a high of $10,875,000 (from PCF, on February 26, 2013), the parties were unable to reach a settlement. Twenty days before trial, pursuant to section 1250.410, the City made its final offer of compensation and PCF made its final demand. The City‘s offer, for $5,000,000, was expressly made ―contingent on the approval of the Federal Transportation Authority [FTA], the Board of Directors of the San Francisco Municipal Transportation Agency [MTA], and the San Francisco Board of Supervisors [the Board].‖ PCF demanded $8,600,000 plus statutory costs and interest. The disparity between the offer and demand appears to be due primarily to differing views on the likelihood of rezoning and the cost of environmental remediation. No settlement was reached, and the parties proceeded to trial."
  },
  "outcome": {
   "amount": 7319000,
   "amountIsTheRequestedAmount": false,
   "date": "2015-05-26",
   "description": "The jury determined total compensation of $7,319,000 (fair market value $7,400,000 minus $81,000 for environmental remediation), against the City's contingent $5,000,000 final offer and PCF's $8,600,000 final demand. The trial court denied PCF's motion for litigation expenses; the Court of Appeal reversed that order on May 26, 2015 (the contingent offer was unreasonable as a matter of law) and remanded. The verdict was not appealed.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "none",
   "finalAmount": 7319000,
   "finalNote": "Verdict undisturbed; only the litigation-expense order was reversed and remanded."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "condemnor",
    "amount": 3800000,
    "kind": "initial offer",
    "quote": "proposed valuations for the property ranging from a low of $3,800,000 (from the City, on January 7, 2010) to a high of $10,875,000 (from PCF, on February 26, 2013)"
   },
   {
    "by": "owner",
    "amount": 10875000,
    "kind": "demand",
    "quote": "to a high of $10,875,000 (from PCF, on February 26, 2013)"
   },
   {
    "by": "condemnor",
    "amount": 5000000,
    "kind": "settlement offer (CCP 1250.410 final offer)",
    "quote": "The City‘s offer, for $5,000,000, was expressly made ―contingent on the approval of the Federal Transportation Authority"
   },
   {
    "by": "owner",
    "amount": 8600000,
    "kind": "demand (CCP 1250.410 final demand)",
    "quote": "PCF demanded $8,600,000 plus statutory costs and interest."
   },
   {
    "by": "condemnor",
    "amount": 3128000,
    "kind": "appraisal",
    "quote": "made a final offer that exceeded its own appraisal by $1,872,000 (or 60%).",
    "derived": true
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "morale-v-state-texas-2018",
  "source": {
   "caseName": "Stephen Morale d/b/a Action Collision Repair and Kimberly Morale v. The State of Texas",
   "court": "Supreme Court of Texas (per curiam), on petition for review from the Second Court of Appeals (Fort Worth), which had reversed the Denton County trial court's judgment",
   "docket": "No. 17-0049",
   "decided": "2018-06-22",
   "url": "https://storage.courtlistener.com/pdf/2018/06/22/stephen_morale_dba_action_collision_repair_and_kimberly_morale_v._state.pdf",
   "excerptNote": "Verbatim from the statement of facts: the property and taking, the State's displacement classification and later cure plan, the special commissioners' award, the owners' appraiser and land planner, the zoning and nonconforming-use background, the State's pretrial motion, each side's valuation testimony (the State's $122,953; the owners' appraiser's $1,262,947 displaced and $1,064,335 non-displaced figures; Kimberly Morale's $1,262,000 request), and the disputed zoning-variance testimony and the trial court's evidentiary rulings. The owners' appraiser's non-displaced figure equals the verdict and is kept as the owners' own stated valuation (Skyway precedent), so amountIsTheRequestedAmount is true. Removed: the opening holding paragraph, the citation and department-manual sentences, the jury question and verdict sentence, footnote 1 (the $20 judgment discrepancy), the court of appeals' holdings and all of this Court's analysis and disposition."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owners, Stephen and Kimberly Morale d/b/a Action Collision Repair, in the State's partial taking of a strip of their collision-repair shop property in Little Elm, Texas for the widening of FM 720. The owners objected to the special commissioners' award and the case is set for a jury trial on the difference in market value before and after the taking.",
   "documentText": "The State of Texas planned to condemn a portion of a 33,000 square-foot property owned by Stephen and Kimberly Morale in the Town of Little Elm, Texas (the Town), for purposes of improving FM 720 in Denton County. The property was improved with an 8,831 square-foot building used for the Morales’ vehicle collision repair business. Specifically, the State planned to take a 3,200 square-foot strip of land, which included a metal canopy used by the business that would have to be demolished as part of the taking. The State’s appraiser, Jennifer Ayers, initially determined that after the taking and the implementation of a “cure plan” involving removal of certain parts of the building, the Morales’ property could still be used as a general auto repair shop but not as a collision repair shop. Based on Ayers’s determination that the use of the property would change as a result of the taking, the State administratively classified the Morales as “displaced” in May 2012.\n\nThe State’s land planner, Ronan O’Connor, subsequently developed a second cure plan for reconfiguring the property that would enable the Morales to continue operating their existing business on the site. O’Connor’s plan relocated the metal canopy to another location on the property, added a door to the office building, and made adjustments to the parking curbs. In February 2013, Ayers revised her appraisal to incorporate O’Connor’s cure plan, determining that the Morales’ property could still be used as a collision repair shop. In May 2013, the special commissioners awarded the Morales $49,804 in damages for the taking. The Morales objected to the award and demanded a jury trial. The State formally revoked the Morales’ displacee status on November 21, 2013. The Morales hired their own appraiser, David Bolton, and land planner, Bill Carson. Bolton had developed an initial appraisal in May 2013 based on the assumption that the entire site would be demolished (following from the assumption of displacement). Carson developed two cure plans for reconfiguring the property to continue its use as a collision repair shop. Bolton used one of these plans to make an alternative appraisal based on nondisplacement.\n\nThe Morales’ property is zoned light commercial, and a collision repair shop is not an authorized use in that zoning classification. The property also had other nonconforming uses, such as unpaved parking. However, these uses all existed before the current zoning restrictions were in place, and, as they were continuous, the uses would be grandfathered-in and considered legally nonconforming. Once a nonconforming use ceases, the grandfathered status is lost. Thus, when Carson developed his cure plans allowing for continued use as a collision repair shop, he had to alter other previously grandfathered, nonconforming uses of the property (e.g., the use of the parking lot), which in turn required additional modifications to bring the new use “up to conformity” with applicable Town zoning ordinances. Before trial, the State moved to exclude any evidence relating to the Morales’ revoked displacee status. The trial court denied the motion.\n\nThe State presented evidence at trial, through Ayers’s testimony of her appraisal based on implementation of the O’Connor cure plan, that the compensation owed the Morales was $122,953. David Bolton, the Morales’ appraiser, testified to two values. First, he testified to what he called his “displaced valuation” of $1,262,947, constituting the loss in fair market value of the property if all improvements were razed. He alternatively testified that if one of Carson’s cure plans were implemented, such that the Morales could still use the property to operate a collision repair shop and thus would not be displaced, the Morales would be entitled to $1,064,335. Kimberly Morale testified that the Morales were requesting an award of $1,262,000 because, based on her knowledge of the property’s highest and best use, they were being displaced.\n\nThe parties also disputed the admissibility of evidence regarding the Town’s zoning regulations and the effect they would have on the property after condemnation. At trial, the State offered the testimony of city engineer Jason Laumer and city attorney Robert Brown. By referring to the Town’s previous grants of zoning variances on unrelated properties, their testimony suggested that the Morales would also be given a zoning variance, allowing them to continue the collision repair business in a legally nonconforming way. Brown and Laumer conceded, however, that they could not testify as to what the Little Elm Town Council would or would not ultimately do. Dusty McAfee, who heads the Town’s planning department, testified as a witness for the Morales. Like Brown and Laumer, McAfee could not speak to what the Town would do. But his testimony suggested that a prospective buyer would not believe it was reasonably probable that the Town would grant a zoning variance to make the O’Connor cure plan viable—or at least the buyer would not believe it was as probable as Brown and Laumer painted it. This was a key disagreement because the Morales’ ability to continue using the property as a collision repair shop under the O’Connor cure plan (which was the basis for revoking the displacement classification) depended on obtaining a zoning variance. The trial court admitted the testimony of Bolton and Kimberly Morale, including their discussion of displacement. It excluded Brown’s and Laumer’s testimony as irrelevant."
  },
  "outcome": {
   "amount": 1064335,
   "amountIsTheRequestedAmount": true,
   "date": "2018-06-22",
   "description": "The jury awarded $1,064,335, exactly the owners' appraiser Bolton's non-displaced compensation figure (the owners had requested $1,262,000; the State's appraiser said $122,953; the commissioners had awarded $49,804), and the trial court rendered judgment essentially on the verdict ($1,064,355, an unexplained $20 discrepancy). The Fort Worth Court of Appeals reversed and remanded for a new trial (2016); the Supreme Court of Texas reversed that judgment on June 22, 2018 and reinstated the trial court's judgment. No attorney's fees in a Texas condemnation award.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 1064335,
   "finalNote": "Trial judgment reinstated by the Supreme Court of Texas after the court of appeals had reversed it."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "commissioners",
    "amount": 49804,
    "kind": "commissioners award",
    "quote": "In May 2013, the special commissioners awarded the Morales $49,804 in damages for the taking."
   },
   {
    "by": "condemnor",
    "amount": 122953,
    "kind": "appraisal",
    "quote": "The State presented evidence at trial, through Ayers’s testimony of her appraisal based on implementation of the O’Connor cure plan, that the compensation owed the Morales was $122,953."
   },
   {
    "by": "owner",
    "amount": 1262947,
    "kind": "appraisal",
    "quote": "First, he testified to what he called his “displaced valuation” of $1,262,947"
   },
   {
    "by": "owner",
    "amount": 1064335,
    "kind": "appraisal (alternative, non-displaced)",
    "quote": "the Morales would be entitled to $1,064,335."
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "mhtc-v-boer-potted-steer-2016",
  "source": {
   "caseName": "State ex rel. Missouri Highways and Transportation Commission v. Joseph H. Boer, et al. (Exceptions of Joseph H. Boer, Mary Christine Boer and Joseph Boer's Food Service d/b/a The Potted Steer Restaurant)",
   "court": "Missouri Court of Appeals, Southern District, on appeal from the Circuit Court of Laclede County",
   "docket": "No. SD33804",
   "decided": "2016-01-27",
   "url": "https://storage.courtlistener.com/pdf/2016/01/27/state_ex_rel._missouri_highways_and_transportation_commission.pdf",
   "excerptNote": "Verbatim from Facts and Procedural History: the petition and commissioners' award, Mr. Boer's testimony about the property, the effect of the taking, his real-estate knowledge, the Link's Landing and BOLO sales, his opinion of value and request, and each side's appraisers' figures; plus MHTC's objections and the trial court's evidentiary rulings, footnote 1 (both sides agreed the property was unique) and Kirby's cross-examination answers on the age of the Link's Landing sale. Removed: the opening paragraph (verdict and affirmance), the sentence stating MHTC's 1992 purchase price for Link's Landing ($2,900,000, which equals the verdict and is not a party demand, so the leak guard bars it; the excerpt keeps that MHTC bought it in 1992 and that the sale informed Mr. Boer's opinion), the verdict and judgment sentences, the closing-argument dispute, and all points and holdings; footnote markers."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owners, Joseph and Mary Christine Boer and Joseph Boer's Food Service d/b/a The Potted Steer Restaurant, in the Missouri Highways and Transportation Commission's partial taking of about 1.74 of their 2.3 lakefront acres at the Grand Glaize Bridge for a highway easement. The owners filed exceptions to the commissioners' award and the case is set for a jury trial on damages.",
   "documentText": "MHTC filed a petition to condemn approximately 1.74 of the 2.3 acres of the Potted Steer owned by the Boers in Camden County, Missouri, leaving only .566 acres. Commissioners filed a report awarding the Boers $2,500,000 for the acquired property, and the Boers filed exceptions to the report asking that their damages be determined by a jury.\n\nJoseph H. Boer (“Mr. Boer”) testified he moved to Camden County, Missouri, in 1962 and had owned commercial real estate there since 1973, when he opened the Potted Steer. Mr. Boer described the Potted Steer as a “high end, expensive, protein venue restaurant” patronized by “mostly professional people.” Located on Highway 54, it sloped down to the lakefront which offered Mr. Boer’s patrons an unobstructed view of the lake and a dock allowing access to the Potted Steer by water. Because the Potted Steer had highway frontage, lake frontage, and was located next to the Grand Glaize Bridge (“the Bridge”), it meant the Potted Steer had exposure from persons driving over the bridge, as well as persons driving under the bridge from the water. Mr. Boer testified that these features of his property were, “[c]ertainly, absolutely, positively” important. He testified that the attributes of having highway and lake frontage, and being located at one end of the bridge, made his property “unique”1 among other lake area properties. The Potted Steer was located at one of the four corners of the Bridge. Link’s Landing, another commercial property, was located diagonally from the Potted Steer at the opposite end of the Bridge. Only one other corner of the Bridge had developed property with direct roadway access. The parties, and their respective expert witnesses, were in agreement that the Potted Steer was “unique” due to its location, and highway and lake frontage.\n\nMr. Boer also testified about the manner in which the condemnation affected the use and value of what remained after the partial taking of the Potted Steer. The parking, lakefront, all highway frontage, and sewer service were lost. Mr. Boer viewed what was left as “a bunch of old lumber.” This was consistent with the opinion of MHTC’s witness, David Nunn (“Nunn”), who opined that because of the loss of parking in relation to the size of the restaurant “it would be difficult to utilize the building in any really functional manner, and . . . the building had no value and would need to be razed or torn down.”\n\nMr. Boer explained that he had taken a course on real estate at the University of Missouri, in addition to his experience with real estate. Mr. Boer testified that he had personal knowledge of real estate values in Camden County. He noted that he had owned and leased several parcels of real estate in the area over the years. He also engaged in regular conversations with fellow business people and restaurant patrons regarding property sales in the area. In particular, Jim Muff (“Muff”), the owner of Link’s Landing, told Mr. Boer that MHTC had purchased his property in 1992. MHTC’s counsel objected to any testimony by Mr. Boer using comparable sales data to support his opinions of value because there was an insufficient foundation qualifying him as an expert. MHTC’s counsel also specifically objected to the admission into evidence of the Link’s Landing sale because the sale was too remote in time to be admissible as a comparable sale. The trial court overruled MHTC’s objections.\n\nThat sale was one factor in Mr. Boer’s opinion of the pre-condemnation value of his property. Mr. Boer considered the Link’s Landing property to be similar to his property because it also had highway and lake frontage, but it did not include as much acreage as the Potted Steer. Mr. Boer considered the Potted Steer superior to the Link’s Landing property. Mr. Boer was aware that in 2008, the Bank of the Lake of the Ozarks purchased a piece of real estate located on Highway 54, less than a mile from the Potted Steer (the “BOLO sale”). He learned of the BOLO sale directly from bank executives and that the sale price was more than one million dollars. Mr. Boer noted that the BOLO sale property was one-third the size of the Potted Steer. Given his consideration of these sales, what he learned from talking to his patrons, and his own experience purchasing property in the area, Mr. Boer’s opinion was that the precondemnation value of the Potted Steer was $3,500,000. Mr. Boer testified he thought the remaining .566 acres was worth $200,000. Mr. Boer asked the jury to award him the difference of $3,300,000. John Kirby (“Kirby”), Mr. Boer’s expert real estate appraiser, opined that just compensation for the Potted Steer was $2,085,000. MHTC’s expert real estate appraisers, Allan Moore (“Moore”) and Nunn, opined that just compensation was $1,200,000 and $1,500,000, respectively. In forming their opinions, each expert relied on sales of property they believed to be somewhat comparable to the Potted Steer.\n\nWhen asked if he, as a professional appraiser, would use a sale that old, Kirby initially testified, “To really answer that, I would need to know everything about the circumstances, how unusual was the sale, what am I trying to evaluate, that type of thing.” Subsequent questioning prompted this response from Kirby: “It’s not something that is normally done, but as I said, under the circumstances, depending upon the uniqueness of the property, it could be. As I recall, in David Nunn’s report, he used paired sales from the mid-1990s.” Later, during re-cross, Kirby was asked why he did not consider the Link’s Landing sale, to which he responded that he “never thought about using a sale that old[.]”"
  },
  "outcome": {
   "amount": 2900000,
   "amountIsTheRequestedAmount": false,
   "date": "2016-01-27",
   "description": "After a three-day December 2014 jury trial the jury awarded the Boers $2,900,000 in damages for the Potted Steer (against the commissioners' $2,500,000, the owners' appraiser's $2,085,000, MHTC's appraisers' $1,200,000 and $1,500,000, and Mr. Boer's own $3,300,000 request); the figure equals what MHTC paid for the nearby Link's Landing property in 1992. Judgment was entered on the verdict less adjustments for interest and prior payments, and remittitur was denied. The Southern District affirmed on January 27, 2016.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 2900000,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "commissioners",
    "amount": 2500000,
    "kind": "commissioners award",
    "quote": "Commissioners filed a report awarding the Boers $2,500,000 for the acquired property"
   },
   {
    "by": "condemnor",
    "amount": 1200000,
    "kind": "appraisal",
    "quote": "MHTC’s expert real estate appraisers, Allan Moore (“Moore”) and Nunn, opined that just compensation was $1,200,000 and $1,500,000, respectively."
   },
   {
    "by": "condemnor",
    "amount": 1500000,
    "kind": "appraisal",
    "quote": "opined that just compensation was $1,200,000 and $1,500,000, respectively."
   },
   {
    "by": "owner",
    "amount": 2085000,
    "kind": "appraisal",
    "quote": "John Kirby (“Kirby”), Mr. Boer’s expert real estate appraiser, opined that just compensation for the Potted Steer was $2,085,000."
   },
   {
    "by": "owner",
    "amount": 3300000,
    "kind": "demand (owner testimony)",
    "quote": "Mr. Boer asked the jury to award him the difference of $3,300,000."
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "tank-car-v-springfield-township-2023",
  "source": {
   "caseName": "Tank Car Corporation of America v. Springfield Township (consolidated cross-appeals)",
   "court": "Commonwealth Court of Pennsylvania, on appeal from the Montgomery County Court of Common Pleas (non-jury trial on appeal from the Board of View)",
   "docket": "Nos. 1043 C.D. 2021 and 1096 C.D. 2021",
   "decided": "2023-10-19",
   "url": "https://storage.courtlistener.com/pdf/2023/10/19/tank_car_corp._of_america_v._springfield_twp..pdf",
   "excerptNote": "Verbatim from Part I, Factual and Procedural History: the property and its contamination, the EPA cleanup and cap, the school-bus Lease and the Township's injunction action, the declaration of taking, the $150,000 estimated just compensation and the Board of View's $1,000,000 award (an interim figure), footnote 2 (Act 2), and Part I.D-E: each appraiser's methods, figures and deductions (owner's Barth: $2,100,000 reconciled; Township's Lukens: $750,000 before deductions, $175,000 demolition, Penn E&R's $258,200 Act 2 estimate plus 10% contingency, 20% stigma) and the parties' evidence on whether the Lease was in effect. Record citations ('Id. at ...a') are kept as they appear. Removed: the opening paragraph (judgment amount and affirmance), footnotes 1 and 3-5 and markers, Barth's six numbered comparable sales and the Swedeland Road comparable, Part I.F (the trial court's findings: value $1,100,000 less demolition and Act 2 costs, no stigma deduction, no Lease) and everything after it."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owner, Tank Car Corporation of America, whose contaminated former tank-car cleaning site at 1725 Walnut Avenue was taken in full by Springfield Township for a public park. Both sides appealed the Board of View's award and the case is set for a non-jury trial on just compensation.",
   "documentText": "Tank Car acquired the Property in 1921 and used it for the operation of a railroad tank car cleaning and rehabilitation business and ceased operations in 2001 or 2002. (Reproduced Record (R.R.) at 971a-75a, 1001a-02a, 2434a.) The Property consists of approximately 7.89 acres of land and includes a 25,000-square foot warehouse, attached offices, and three detached buildings. The Property is zoned industrial and is surrounded by other industrial sites. Id. at 920a, 2148a, 2585a. Tank Car’s “former industrial operations at the facility produced hazardous wastes and liquids containing hazardous substances that were placed in a lagoon and later into buried tanker cars at the [P]roperty.” Id. at 1112a-13a. As of 2006, the Property was substantially contaminated with hazardous materials. Id. at 2434a.\n\nOn or about April 10, 2006, the United States Environmental Protection Agency (EPA) declared the Property a Superfund site and began to evaluate the Property under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601. The EPA ultimately decided to remove hazardous substances from the site. (R.R. at 2078a.) The EPA completed the removal action in May 2011. The EPA left contaminated soils and sandblast grit from the Property and surrounding parcels beneath a cover (referred to as the “cap”) constructed to eliminate migration of such material and to prevent contact by humans and animals. Id. at 2079a. The cap is approximately two feet thick and consists of a layer of clay topped with modified stone. Id. at 2079a-80a. The cap covers approximately 50% of the total surface of the Property and is generally located in the northeastern area of the Property. Id. at 2434a.\n\nTwo years after the EPA cleanup was completed, Tank Car entered into a long-term Lease Agreement (Lease) on May 22, 2013, with Cheltenham Transportation, LLC, allowing it to park school buses on the Property. The term of the Lease was ten years, with an option to extend the term another five years. The $7,500 monthly rent was due to increase by 3% each year. The Lease provided that the parties would negotiate for additional monthly rent relative to increased use of the Property. Id. at 1894a.\n\nAfter entering into the Lease, Cheltenham Transportation began installing a fence and light posts on the Property, without first notifying the Township. Id. at 2436a. The Township, concerned that the activity was possibly in violation of the EPA restrictions relating to the cap, contacted the EPA. Id. at 2436a. The EPA representative expressed his concern that the work, especially digging in the soil, had been done in violation of the cap restrictions. Id. at 2436a. On July 19, 2013, the Township brought an action in the trial court against Cheltenham Transportation and Tank Car. Id. at 436a. In its complaint and a motion for preliminary injunction filed the same day, the Township asserted that Cheltenham Transportation’s activities on the Property were in violation of the Township Code, specifically the Springfield Township Pennsylvania Subdivision and Land Development Ordinance of 1950, as amended, and the use restrictions imposed by the EPA. Id. at 2436a. On August 28, 2013, the trial court granted the Township’s motion and entered a preliminary injunction order which, inter alia, enjoined Cheltenham Transportation and Tank Car from conducting any demolition or improvement on the Property without first obtaining a waiver or subdivision and land development approval from the Township and directed them to immediately remove all buses, light poles, trailers, and stone deposited on the Property. Id. at 1813a-14a. Shortly after issuance of the preliminary injunction order, Cheltenham Transportation and the Township entered into an agreement under which Cheltenham Transportation would operate its school bus depot at a nearby property known as the Giuliani Property, subject to various conditions, including the prompt submission of a land development application for use of that property. Id. at 1907a-08a, 2437a. Following the issuance of the preliminary injunction order, Cheltenham Transportation has stored its buses exclusively on the Giuliani Property and has not occupied or used the Property for any purpose. Id. at 1801a, 2437a. On April 22, 2015, Cheltenham Transportation submitted a Land Use Development Application for the Property, and an Amended Application on May 8, 2015. Id. at 904a-07a. The Amended Application was reviewed by the Township Engineer and the Montgomery County Planning Commission, both of whom made recommendations for changes. Id. at 910a. However, Cheltenham Transportation never submitted any revised plans. At the December 7, 2015 Workshop Meeting of the Township Board of Commissioners, an attorney for Cheltenham Transportation appeared and stated that the Amended Application was set aside until the issues with the Giuliani Property were resolved at which point the Amended Application for the Property would be withdrawn. Id. at 928a.\n\nOn September 8, 2015, the Township Board of Commissioners adopted a Resolution authorizing the condemnation of the Property for the purpose of establishing a public park. Id. at 2439a. On October 30, 2015, the Township filed a declaration of taking, condemning the Property. Although Tank Car initially filed preliminary objections to the declaration of taking, it later withdrew the objections and tendered possession of the Property to the Township. Id. at 919a-20a, 1797a, 2345a. In January 2017, the Township paid Tank Car $150,000 in estimated just compensation. Id. at 920a. On March 6, 2017, Tank Car filed a Petition for Appointment of a Board of View. The Board of View viewed the Property and held hearings on June 5, 2018, and July 16, 2018. The Board of View issued a Report and Award on August 15, 2018, and awarded Tank Car damages in the amount of $1,000,000, less the $150,000 already paid to Tank Car by the Township. Id. at 24a-26a. Both Tank Car and the Township appealed. The trial court held a three-day non-jury trial on February 22-24, 2021, and entered its Decision on May 18, 2021.\n\nThe Township has not proceeded with the redevelopment of the Property as a public park, pending resolution of the present case. As part of the redevelopment, it intends to seek liability protection under the Land Recycling and Environmental Remediation Standards Act, Act of May 19, 1995, P.L. 4, No. 2, 35 P.S. §§ 6026.101-.908, commonly known as Act 2. Under Act 2, a party is required to clean up soil or groundwater to certain risk-based standards that the Department of Environmental Protection has previously determined protect the environment. Act 2 does not require the remediator to entirely remove a released constituent from the environment, if even technically feasible, but rather provides a standard that, when met, releases a party from further cleanup liability for that constituent.\n\nAt the trial, Tank Car’s expert appraiser, Michael J. Barth, testified regarding the value of the Property as of the date of the taking. Reaves C. Lukens testified as the Township’s expert appraiser.\n\nBarth opined that the highest and best use of the Property was “an industrial use to either . . . repurpose it for industrial warehouse use along with storing on the land or use the site to store buses on.” Id. at 1002a. He opined that a buyer of the Property would renovate, rather than demolish, the main “buildings on the Property.” Id. Barth used three different appraisal methodologies to determine the Property’s value before the taking: (1) the Sales Comparison Approach; (2) Income Capitalization Approach—Direct Capitalization Method (i.e., the traditional Income Capitalization Approach), based on the existence of the Lease; and (3) Income Capitalization Approach—Discounted Cash Flow Method (which he characterized as a “hybrid” of Income Capitalization and Sales Comparison). Barth considered the Sales Comparison Approach as the best valuation method for the Property because in his opinion the Property is best suited as an owneroccupied property. He valued the Property as environmentally remediated and approved for industrial use and, thus, did not make any downward adjustments to the value of the Property for the restrictions imposed by the “cap” or any other environmental condition thereon. Id. at 1122a, 2140a, 2161a-62a. Barth had never before appraised any Superfund sites. Id. at 2441a. He was unable to opine that the environmental history of the Subject Property had “absolutely no impact on the value.” Id. at 1122a, 2444a. Barth conceded that “willing and informed buyers are reluctant to acquire environmentally contaminated property without some liability protection.”\n\nBarth adjusted the values of comparables 1, 3, 5, and 6 down and the values of comparables 2 and 4 up to arrive at a per acre price of $240,000 for the Property, as vacant. Id. at 1016a-20a, 2170a. He rounded the total value of the Property, as vacant, to $1,900,000.\n\nSimilarly, Barth testified that the warehouse could be repurposed, or the Property could be used as a bus depot. Id. at 1002a. Barth observed that the warehouse, with its 25-foot ceiling height and steel frame, could be re-clad and made into a productive industrial building. Id. at 977a. Barth explained that starting in 2010, more buyers were looking to refurbish old industrial buildings, instead of demolishing them and waiting to obtain approvals to rebuild. Id. at 996a. He concluded that the warehouse “would be a very desirable building for someone to come in and rehabilitate and clean up and reuse.” Id. at 996- 97a. On the basis of these sales, after making some adjustments, he calculated the value of a fee simple interest in the Property as of the date of the taking as $2,105,000. Id. at 1081a-92a, 2182a, 2188a. Barth’s Income Capitalization Approach—Discounted Cash Flow Method analysis assumed that the Lease was in effect, and there were eight years left. Id. at 985a-1002a. Applying the Income Capitalization Approach—Discounted Cash Flow Method, Barth valued the reversionary interest in the land and the value of the stream of income over the term of the Lease to arrive at a value of $2,060,000. Id. at 1022a-80a. Finally, using the Income Capitalization Approach—Direct Capitalization Method, Barth valued the Property “as was” at $2,040,000. Id. at 1092a-93a, 2189a- 92a. Reconciling his three approaches to valuation, Barth concluded that the “as was” market value of the Property was $2,100,000.\n\nLukens had experience appraising several properties with environmental contamination. Id. at 2445a. Lukens testified that the highest and best use of the Property was for industrial use, specifically “[w]arehouse development.” Id. at 1355a. Unlike Barth, Lukens opined that a reasonable buyer would want to acquire the Property in vacant condition and would therefore demolish the existing buildings, which had all outlived their useful lives and were detracting from the value of the Property. Id. at 2244a. Lukens further opined that a reasonable buyer would require that Act 2 liability protection be obtained on the Property. Id. at 2445a. He acknowledged that Act 2 remediation is voluntary but stated that no “buyer in [his] right mind” would buy the Property without getting Act 2 clearance. Id. at 1480a, 2445a-46a. Lukens testified that: Property owners only want to be accountable for environmental contamination that they caused. The Act 2 clearance helps to collar that responsibility. Properties are very difficult to finance that are adversely environmentally impacted without an Act 2 clearance, and most prudent people do not buy into that sort of a problem without getting it addressed and without reducing their exposure. Id. at 1345a-46a. In arriving at a value for the Property, Lukens considered a report prepared by Penn E&R, which was retained by the Township in 2015 to perform an analysis of what it would cost to receive an Act 2 release for an industrial use of the Property. Id. at 1341. The Penn E&R cost estimate was $258,200. Lukens testified that the value of the Property should be adjusted downward by the cost of the Act 2 remediation. Lukens added a 10% contingency to the Penn E&R estimate, resulting in a rounded number of $284,000. Id. at 1344a, 1479a, 2446a-47a. Lukens testified that the estimate was the type of report that he and other appraisers customarily rely upon in forming opinions of value. Id. at 1338a-39a. Lukens further opined that because a reasonable buyer would want the Property to be vacant, an appraisal based on the Income Capitalization Approach would not be appropriate, and the only proper approach would be the Sales Comparison Approach. Id. at 2446a. Under the Sales Comparison Approach, Lukens identified four properties representing comparable sales. Based on these values, Lukens concluded that the Property’s value, as hypothetically clean and before deductions, was $750,000 (i.e., $95,000 per acre) as of the date of the taking. Id. at 1369a-70a. Lukens then further reduced the value of the Property by two deductions. First, Lukens deducted from the value of the Property the cost of demolishing the existing buildings, which costs he estimated to be $175,000. Id. at 1376a. Second, Lukens reduced the value of the Property by deducting 20% of its value for “environmental stigma,” which he opined reduced the value of the Property by $150,000.\n\nTank Car presented evidence in an effort to establish that the Lease was “in effect,” and that land development approval was reasonably available as of the date of the taking. To that end, Tank Car presented the testimony of Melissa Gordon, President of Tank Car, and Eric Faust, President of Cheltenham Transportation, both of whom testified that they considered the Lease to be in effect before and after the taking. Tank Car also presented evidence and argument that the Township accepted Cheltenham Transportation’s standing to file and proceed in the land development premised on the Lease being in effect, and that the Amended Application remained pending on the date of taking. To rebut Tank Car’s evidence, the Township presented evidence that Cheltenham Transportation’s attorney informed the Board of Commissioners that the Amended Application had been “back-burnered” or withdrawn to focus on obtaining approval of the use of the Giuliani Property, and the admission made in Tank Car’s preliminary objections that the Lease was canceled. It also argued that, in verified Preliminary Objections to the Declaration of Taking filing with the trial court, Gordon had averred under penalty of law that following the issuance of the Preliminary Injunction Order, Cheltenham Transportation “canceled its lease with Tank Car.” (R.R. at 1801a.) The Township also elicited the following from Gordon on crossexamination: when she signed the verification “[t]he factual statements in that were true and correct to the best of [her] knowledge, yes;” after the preliminary injunction, no rent was owed by Cheltenham Transportation; neither party was fulfilling any duties under the Lease; Tank Car was leasing the Property to another party, and Cheltenham Transportation had begun leasing a separate property for its operation; and that except for the payment of the first and last months’ rent at the outset of the Lease, Cheltenham Transportation has not made any payments of rent to Tank Car."
  },
  "outcome": {
   "amount": 667000,
   "amountIsTheRequestedAmount": false,
   "date": "2023-10-19",
   "description": "After a three-day February 2021 non-jury trial the Montgomery County court found the property's fair market value at the taking was $667,000: $1,100,000 less $175,000 for demolition and $258,200 for Act 2 remediation, with no environmental-stigma deduction and no Lease in effect. Judgment of December 16, 2021 awarded $517,000 in just compensation plus $4,000 fee reimbursement ($521,000). The Board of View had awarded $1,000,000; the owner's appraiser said $2,100,000 and the Township's about $425,000 after deductions. The Commonwealth Court affirmed on October 19, 2023. Amount used is the fair market value found (total compensation, of which the $150,000 estimated just compensation was already paid).",
   "attorneysFeesAtTrial": 4000,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 667000,
   "finalNote": "Affirmed. The $517,000 judgment equals the $667,000 value less the $150,000 paid in January 2017; the opinion does not say so expressly, but the arithmetic matches and it follows the Board of View's 'less the $150,000 already paid' format. The $4,000 is a statutory fee reimbursement."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "condemnor",
    "amount": 150000,
    "kind": "deposit (estimated just compensation paid)",
    "quote": "In January 2017, the Township paid Tank Car $150,000 in estimated just compensation."
   },
   {
    "by": "commissioners",
    "amount": 1000000,
    "kind": "interim award (board of view)",
    "quote": "The Board of View issued a Report and Award on August 15, 2018, and awarded Tank Car damages in the amount of $1,000,000, less the $150,000 already paid to Tank Car by the Township."
   },
   {
    "by": "owner",
    "amount": 2100000,
    "kind": "appraisal",
    "quote": "Barth concluded that the “as was” market value of the Property was $2,100,000."
   },
   {
    "by": "condemnor",
    "amount": 750000,
    "kind": "appraisal (before deductions)",
    "quote": "Lukens concluded that the Property’s value, as hypothetically clean and before deductions, was $750,000 (i.e., $95,000 per acre) as of the date of the taking.",
    "note": "Lukens then deducted $175,000 demolition, $284,000 remediation and $150,000 stigma; net not stated in the opinion"
   }
  ],
  "category": "eminent-domain",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "wvdoh-v-pifer-2019",
  "source": {
   "caseName": "West Virginia Department of Transportation, Division of Highways v. Lawrence W. Pifer and Michael E. Pifer",
   "court": "Supreme Court of Appeals of West Virginia, on appeal from the Circuit Court of Wood County (Civil Action No. 10-C-95)",
   "docket": "No. 18-0517",
   "decided": "2019-11-19",
   "url": "https://storage.courtlistener.com/pdf/2019/11/19/wv_dept._of_transportation_division_of_highways_v._lawrence_w._pifer_and.pdf",
   "excerptNote": "Verbatim from the introduction's description of the owners and project history (without its sentences on the verdict and interest) and Part I, Factual and Procedural History, through the experts' testimony and the jury instruction: the 1998 plan, the 2001 schedule letter, the 2008 plan change, the partial taking, the $3,550 deposit, the $17,500 commissioners' award, the blight claim and DOH's motions in limine, the owners' appraiser's figures ($2,000 take, zero residue damage, $35,000 a year lost rent), Michael Pifer's $812,000 claim, and DOH's appraiser. Removed: the syllabus, the introduction's verdict and $466,114 sentences, footnotes and markers, the jury's awards for the take, easements and blight, the judgment and post-trial motion, and all of the discussion and holdings."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owners, Lawrence and Michael Pifer, who operate a gasoline service station, convenience store and towing business in Mineral Wells, West Virginia, in the Division of Highways' partial taking of a small strip and two temporary construction easements, including their claim for pre-petition condemnation blight. Both sides objected to the commissioners' report and the case is set for a jury trial.",
   "documentText": "Respondents are brothers who own property in Wood County, West Virginia, and operate a family business on their property. The fair market value of their land with improvements is $2.5 million. In 1998, Petitioner West Virginia Department of Transportation Division of Highways (“DOH”) announced plans regarding a public improvement project that would severely impact Respondents’ property. More than a decade later, however, DOH changed the project plans and condemned only a small portion of Respondents’ property.\n\nRespondents are independent operators of a gasoline service station, convenience store, and towing service in Mineral Wells, West Virginia. Respondents have operated their family business for more than twenty years on their 2.45 acre parcel that fronts County Route 14.\n\nIn April, 1996, and October, 1998, DOH held public informational meetings regarding a planned public project involving the South Mineral Wells Interchange of Interstate 77 and County Route 14 (the “project”). DOH considered several plans for completion of the project. Under the plan chosen in December, 1998, Alternate Plan C, DOH would take Respondents’ parcel of land almost in its entirety. Respondent Michael E. Pifer testified that DOH’s announcement was devastating news to him and his family. That was shortly after we went to that meeting over at the Mineral Wells school, and had the bomb set on us that we were the cheapest and it looked like they was going to take us. And that was in ’98. That was my anniversary message to my wife that night. By letter dated December 18, 1998, DOH confirmed that it chose Alternate Plan C for the portion of the project west of the interstate. Mr. Pifer testified about the significance of DOH’s selection: “That’s going through my convenience store. That’s going through my gas pumps, and that’s going through my tank field.” By letter dated March 21, 2001, DOH informed Respondents that construction plan development would begin in July, 2003, and construction would begin in “Spring 2005.” DOH kept in touch with Respondents, however, and delayed moving forward on the project; construction did not begin as planned.\n\nIn April, 2008, a DOH employee met with Michael E. Pifer at his service station to announce DOH changed the project plans, preliminarily, and Respondents’ property would largely be spared. Mr. Pifer testified, this was one of the happiest days that I had, because this showed that we wasn’t being taken. The convenience store was not being taken. The gas pumps was not being taken. The tank field was not being taken. And this paper . . . shows that they’re going to take one leg of my big sign out there. And then the temporary construction easement across almost all the way, and then that one in that right-of-way. And then they were going to take that five-foot by the sign where it had the two stakes out there. . . . But it pretty well told me we were going to survive.\n\nSubsequent to this modification, DOH again changed the project plan to avoiding taking Respondents’ sign. Ultimately, DOH sought to condemn a 116-squarefoot piece of land for a noncontrolled access right of way, a 424-square-foot area for a temporary construction easement (“TCE”), and a second 53-square-foot area for another TCE (the “condemned property”). On March 9, 2010, DOH filed its petition to condemn Respondents’ land for a public use and, per West Virginia Code § 54-2-14a, deposited $3,550 with the trial court, which DOH estimated to be just compensation. As the condemned property represented only a small portion of what Respondents owned, it was considered a partial taking. Commissioners appointed to ascertain “just compensation” determined that Respondents should be awarded $17,500. Both parties objected to the commissioners’ report and the matter went to jury trial.\n\nIn addition to seeking the usual compensation associated with a taking, Respondents sought damages for DOH’s allegedly unreasonable actions during the precondemnation period based on the length of time between the 1998 public announcement and the filing of the petition in 2010. Respondents claimed that they suffered damages for rental loss due to condemnation blight. Prior to trial, DOH moved in limine to preclude the introduction of evidence or testimony of condemnation blight, asserting that Respondents’ method for calculating those damages had not been recognized in West Virginia. DOH further moved the trial court to preclude introduction of evidence that the date of take should be earlier than the date the petition was filed. By letter to the parties, the trial court denied DOH’s motion.\n\nThe five-day trial in this matter commenced on August 8, 2017, and the jury viewed Respondents’ property after the parties’ opening remarks. Respondent’s expert appraiser, Russell Rice, testified at length regarding his investigation to determine the public project’s impact to Respondents’ property. His evaluation began with the usual two-step process: (1) he determined the fair market value of the property taken as $2,000; and (2) he determined the damage to the residue was zero. Mr. Rice explained that the threat of condemnation did not affect the value of the residue at all, but the primary influence of the condemnation blight was the loss of Respondents’ ability to negotiate a lease on the property with a major distributor from 2001 to 2010. Mr. Rice opined that Respondents suffered $35,000 in damages each year based on reasonable market rental values. Michael E. Pifer testified that the best use of his property at the time was to lease to a major dealer/distributor of gasoline rather than to compete with one. The announcement of the project put Respondents’ property under threat of condemnation and they were unable to go forward with negotiations for a favorable lease with a larger commercial operation. Mr. Pifer stated that he was one of the last independents at any major intersection off Interstate 77 in Wood County and he simply could not compete with the larger distributors. When asked if he made any efforts following 2000 to lease the gasoline service station, Mr. Pifer explained: “Well, I didn’t have to make efforts, they come to us. But every one of them said ‘When the road’s done. When the Road’s done we want to talk to you. When the road’s done we will be interested in leasing your facility.’” Mr. Pifer stated further that “no one wanted to lease off of us if the place was going to be torn up and the road construction was going to be three years long. I mean, it really hurts your business when they’re doing stuff out there.” Mr. Pifer claimed $812,000 in damages attributable to condemnation blight. DOH’s expert arraiser, Roscoe Shiplett, testified that he did not see any evidence of condemnation blight when valuing Respondents’ property. He noted Respondents continued to operate their business during all relevant times.\n\nThe trial court instructed the jury as follows: When a condemnor unreasonably delays between the announcement of an intent to condemn a parcel of property and the initiation of the condemnation action causing an owner to suffer damages, the owner is entitled to compensation for that loss. Where the real property has been blighted because of the delay between the announcement of a public project and the acquisition of the lands necessary to construct the project the owner is entitled to recover any decrease in value attributable either to the project, to the pendency of the condemnation project proceedings or to the conduct of the agency relating to the taking of the property and to any loss of earnings from the subject property during the period of the blight. Accordingly if you find by a preponderance of the evidence that the subject property has suffered blight by virtue of a delay between the announcement of the subject project and the acquisition and the date of this condemnation, then you may award damages for any loss of earnings (both personally and business) and any diminution of market value, proven by a preponderance of the evidence."
  },
  "outcome": {
   "amount": 178965,
   "amountIsTheRequestedAmount": false,
   "date": "2019-11-19",
   "description": "After a five-day August 2017 trial the Wood County jury awarded $2,000 for the take, $1,800 for the temporary construction easements, and condemnation-blight damages of $35,033 a year for five years (2003-2007), $175,165, for $178,965 in total before interest (against the $3,550 deposit, the $17,500 commissioners' award and Michael Pifer's $812,000 blight claim). The trial court's judgment added 10% pre-petition and post-petition interest for a total of $466,114. The Supreme Court of Appeals affirmed the blight award on November 19, 2019, but reversed the interest calculation and remanded for it to be recomputed under W. Va. Code 54-2-14a.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "modified",
   "finalAmount": 178965,
   "finalNote": "Principal affirmed ($178,965, the sum of the three verdict items; the opinion never states it as one figure); only the interest computation was reversed and remanded, so the $466,114 judgment total will change."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "condemnor",
    "amount": 3550,
    "kind": "deposit",
    "quote": "deposited $3,550 with the trial court, which DOH estimated to be just compensation."
   },
   {
    "by": "commissioners",
    "amount": 17500,
    "kind": "commissioners award",
    "quote": "Commissioners appointed to ascertain “just compensation” determined that Respondents should be awarded $17,500."
   },
   {
    "by": "owner",
    "amount": 812000,
    "kind": "demand",
    "quote": "Mr. Pifer claimed $812,000 in damages attributable to condemnation blight."
   }
  ],
  "category": "eminent-domain",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "marion-armar-drive-rausch-2022",
  "source": {
   "caseName": "In re Condemnation of Certain Rights in Land for the Extension of Armar Drive Project by the City of Marion, Iowa (Phyllis M. Rausch, as Trustee of the William J. Rausch Family Trust v. City of Marion)",
   "court": "Supreme Court of Iowa, on further review from the Iowa Court of Appeals, appeal from the Iowa District Court for Linn County",
   "docket": "No. 19-1582",
   "decided": "2022-05-06",
   "url": "https://storage.courtlistener.com/pdf/2022/05/06/in_the_matter_of_the_condemnation_of_certain_rights_in_land_for_the.pdf",
   "excerptNote": "Verbatim from Part I, Background Facts and Proceedings: the property, its zoning and location, the trustee's son's qualifications, the partial taking, the Trust's appraiser's $280,625, the commission's $403,000 award, the Trust's $1 million demand, the expert-exclusion order, the City's expert's $82,900, the City's motion in limine and the ruling barring James Rausch's comparable-sales testimony, the three offered comparable sales, and the trial testimony the court allowed (James's $12-per-square-foot value and roughly $800,000 loss; the City appraiser's reasons for rejecting the comparables). The City's appraiser's figure, which the jury adopted, is kept as a party's stated position, so amountIsTheRequestedAmount is true (following lcra-st-louis-v-osher-2020). Removed: the caption summary and introduction (the issue and holding), the trust-income and family details, James's long testimony transcripts, the sentence stating the jury's award, and all of the appellate arguments and analysis."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owner, the William J. Rausch Family Trust, in the City of Marion's partial taking of 0.63 acres (plus a temporary construction easement) of its 9.57 acres of vacant commercially zoned land for the extension of Armar Drive to Highway 100. The Trust appealed the compensation commission's award and the case is set for a jury trial on the difference in fair market value before and after the taking.",
   "documentText": "In 1969, Phyllis and William Rausch bought a house on 20 acres of farmland in Linn County. The Rausch family farmed the land and lived there until 1977, when they turned the house into a rental property. In 1990, the Iowa Department of Transportation condemned part of the land and left the family with 9.57 acres. The house was removed from the land before 2017. The property is now vacant, undeveloped land that is partially wooded with a steep ravine. The site is ungraded and lacks commercial road access, although it is adjacent to a divided four-lane highway. The property is zoned general commercial and is located near the Lindale Mall development area. The property is now owned by the William J. Rausch Family Trust (Trust).\n\nHe has been a restaurant manager since finishing college. James is not an appraiser or real estate agent. He has never bought or sold real estate himself. His only experience in buying and selling real estate involved helping his mother buy two pieces of farmland.\n\nIn 2017, the City of Marion condemned part of the 9.57 acres owned by the Trust to connect Armar Drive to Highway 100, Collins Road. The City took 0.63 acres to extend Armar Drive to intersect with the highway, which also required a temporary construction easement of 0.76 acres. The road extension split the property into two parts separated by Armar Drive: a small triangular section (0.61 acres) and a larger section (8.33 acres). The Trust retained an appraiser who opined the loss in value was $280,625. On March 29, the compensation commission awarded $403,000 as just compensation, 44% higher than the $280,625 figure put forward by the Trust’s appraiser in that proceeding. Nonetheless, the Trust was dissatisfied with the result and sought $1 million in damages. The Trust did not retain an appraiser willing to testify to a higher amount than $403,000. The Trust appealed the commission’s award and demanded a jury trial.\n\nThe district court entered a scheduling order requiring expert disclosures by April 1, 2018, for the Trust, and by June 1, 2018, for the City. On May 4, after the Trust failed to designate an expert, the City moved for summary judgment and to exclude any expert witnesses on behalf of the Trust. The Trust resisted the motions. The City timely designated an expert who opined that just compensation was $82,900. The Trust informed the district court that it planned to call Phyllis to testify as to her opinion of value and to cross-examine the City’s expert to prove its damages. The Trust filed Phyllis’s affidavit and argued Phyllis’s health issues contributed to discovery delays and that the exclusion of expert witnesses would be inappropriate. The City moved to strike Phyllis’s affidavit. The district court denied the motions for summary judgment and to strike the affidavit but granted the motion to exclude the Trust’s expert witnesses.\n\nOn April 12, 2019, the City filed a motion in limine requesting that the court exclude “[t]estimony or evidence of sales of real estate that are asserted by the [Trust] to be comparable to the [property] unless a foundation is laid by the [City’s] expert witness” and “[t]estimony or evidence by the assessor’s website of real estate comparable to the [property] because that would be on the assumption that the assessor has the expertise to express an opinion of comparability.” Two days later the Trust filed its pretrial statement identifying James as a witness instead of Phyllis. Phyllis was unable to serve as a representative of the Trust at trial because of her medical condition. The City objected to the Trust’s designation of James and argued he was not properly designated as an expert, nor was he qualified to testify as an expert. The City further argued that an “[o]pinion testimony of a lay person concerning comparable sales and values is not appropriate in a condemnation appeal. Opinion testimony of a lay person must be based on firsthand knowledge of the witness,” which James lacks because he was not “the buyer, or the seller or the realtor involved in” the comparable sales included in the Trust’s exhibit list. In a ruling five days before trial, the court prohibited James from testifying about comparable sales because such testimony would not be “based on his personal experience or familiarity with the transactions he wishes to call comparable and his information about the market value of the subject property is based on hearsay about how others valued the property at different times.” The Trust submitted an offer of proof on three comparable sales.\n\nThe first sale, the Fiesta Del Sol property, sold in September 2015 for $580,000 (twenty-one dollars per square foot). It is located on Highway 100 about a half-mile away from the Rausch family’s property, closer to the Lindale Mall development area. The new property owners demolished the structure on the property to create vacant land on which to build retail stores. Highway access was limited by a median, allowing traffic in only one direction to turn into the property. The second sale, the UnityPoint property, was purchased as vacant land in June 2016, with 3.23 acres, access to a divided four-lane highway controlled by a traffic light, and a sale price of around $9 per square foot. The land was fairly level with utilities. The new owners built medical offices on the property. The third sale, the Kwik Star property, had 1.95 acres, which sold for around $10 per square foot in July 2015. After the sale, the owners demolished a bank to construct a gas station and convenience store. These properties were located near Westdale Mall, which is the secondary shopping district for the area.\n\nJury trial commenced on August 19. The parties agreed that James could testify as an owner. James testified to his background, his experience in helping his mother manage her properties, and the condition of the property at issue before and after the partial taking. But the district court renewed its ruling that James “is not qualified to testify as to comparable sales. That’s pretty clear. He’s -- I will let him testify as to what he believes the value is and that it’s -- that he got it from looking on the internet, but nothing about a specific sale.” James was allowed to testify about the development activity in the area and opined how the partial taking limited development opportunities for the Trust property. The court barred James from testifying as to the three sales in his offer of proof or any other allegedly comparable sales. James testified to his opinion that the Trust land should be valued at $12 per square foot, or $522,720 per acre, and that the fair market value of the property decreased by around $800,000 after the partial taking.\n\nTo support its case, the City called a certified appraiser. The appraiser’s testimony emphasized that the Trust land was raw undeveloped land, with trees on it, no grading, and no facilities. Later, the Trust’s attorney cross-examined the City’s appraiser about the three comparable sales James had wanted to use. The appraiser said he did not use any of them because they were all developed lots; in fact, two of them had existing buildings. None of them involved undeveloped land."
  },
  "outcome": {
   "amount": 82900,
   "amountIsTheRequestedAmount": true,
   "date": "2022-05-06",
   "description": "The Linn County jury awarded the Trust $82,900, exactly the City's expert's figure (against the commission's $403,000, the Trust's appraiser's $280,625 opinion from the commission proceeding, and James Rausch's roughly $800,000 opinion). The Court of Appeals affirmed; on further review the Iowa Supreme Court vacated the Court of Appeals decision but affirmed the district court judgment on May 6, 2022 (the owner was not qualified as an expert to testify about comparable sales).",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 82900,
   "finalNote": "Affirmed."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "owner",
    "amount": 280625,
    "kind": "appraisal",
    "quote": "The Trust retained an appraiser who opined the loss in value was $280,625."
   },
   {
    "by": "commissioners",
    "amount": 403000,
    "kind": "commissioners award",
    "quote": "the compensation commission awarded $403,000 as just compensation, 44% higher than the $280,625 figure put forward by the Trust’s appraiser in that proceeding."
   },
   {
    "by": "owner",
    "amount": 1000000,
    "kind": "demand",
    "quote": "the Trust was dissatisfied with the result and sought $1 million in"
   },
   {
    "by": "condemnor",
    "amount": 82900,
    "kind": "appraisal",
    "quote": "The City timely designated an expert who opined that just compensation was $82,900."
   }
  ],
  "category": "eminent-domain",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "state-v-speedway-grapevine-2017",
  "source": {
   "caseName": "The State of Texas v. Speedway Grapevine I, LLC, a Texas Limited Liability Company, and First Commercial Bank, N.A.",
   "court": "Court of Appeals of Texas, Second District (Fort Worth), on appeal from County Court at Law No. 1 of Tarrant County (No. 2014-000122-1)",
   "docket": "No. 02-16-00144-CV",
   "decided": "2017-10-19",
   "url": "https://dev.txcourts.gov/media/2szeipg4/opinion-cece8e47-5b32-4c04-ab83-ba12edaeaf1a.pdf",
   "excerptNote": "Verbatim from Part II, Background, sections A-D.2 (the property, the strip taking, the special commissioners' award, the pretrial motions to exclude and rulings, and each witness's testimony: traffic engineer, zoning consultant, the owner's representative's $5.4 million before-value, the owner's appraiser's cost-approach figures and $2,748,822 total, the State's land planner's cure plan and its $131,421 cost, the city official, and the State's appraiser's $265,615 total), with footnotes 2 and 5. One sentence of the owner's appraiser's testimony (remainder value before the taking, $3,060,598) is omitted because footnote 2 splits it in the PDF; the next kept sentence restates that figure. Two sentences that open with the clause 'In calculating the value of the remainder property after the condemnation,' (McRoberts's change-in-use opinion and Wall's cure-plan/exemption conclusion) are omitted: the checker strips that recurring line as a running header, so neither sentence can be matched whole. McRoberts's change-in-use opinion is supplied instead by two verbatim sentences from Part IV that restate his testimony ('As alluded to, McRoberts opined ...'); Wall's points survive in O'Connor's and Stombaugh's testimony. Removed: the introduction (affirmance), footnotes 1, 3, 4 and 6 and markers, the descriptions of the site images, section D.3 (Verdict and Judgment) and all of the analysis. The opinion is from the Texas courts' own site."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owner, Speedway Grapevine I, LLC, whose car wash and express lube site on Grapevine Mills Boulevard in Grapevine, Texas lost a 20-foot strip to the State's road-widening condemnation. The State objected to the special commissioners' award and the case is set for a jury trial on the value of the part taken and damage to the remainder.",
   "documentText": "Speedway owned a 1.123-acre tract (measuring 48,916 square feet) located on the north side of Grapevine Mills Boulevard, just east of FM 2499 in Grapevine. The property is improved with a tunnel-style car wash and an express lube. The west side of the property contains a row of five vacuum islands covered by a canopy (positioned north to south) and an access driveway that Speedway shares with a fast-food restaurant next door. Speedway’s property complied with the City of Grapevine’s zoning regulations, including a twenty-five foot landscaping buffer zone at the front of the property and a fifty-foot building setback line.\n\nIn connection with an improvement project on FM 2499, and in order to widen Grapevine Mills Boulevard, the State sought to acquire a twenty-foot wide strip of land (measuring 4,189 square feet) along the front of Speedway’s property. Unable to reach an agreement with Speedway on the value of the part to be acquired, in January 2014, the State filed a petition to condemn the strip of land. The trial court then appointed special commissioners, who awarded damages in the amount of $954,285.00. The State filed an objection to the special commissioners’ award, deposited the funds into the registry of the court, took possession of the property, and proceeded with its construction plans. Speedway withdrew the funds several months later.\n\nBoth sides filed pretrial motions to exclude certain testimony. Regarding Grant Wall, the State’s appraisal expert, Speedway sought to exclude his opinion testimony about the sales-comparison approach that he performed because he did not include the value of Speedway’s equipment when appraising the market value of Speedway’s property. The trial court agreed and excluded Wall’s salescomparison approach but not his cost approach. Andrew McRoberts was Speedway’s appraisal expert. The State argued that he had speculatively opined about how the City of Grapevine would treat Speedway’s post-condemnation nonconforming property, that Texas law did not recognize his income approach, and that he had improperly relied upon noncompensable impairment of access in forming his opinions. The trial court excluded McRoberts’s income approach but not his cost approach. It also confirmed that McRoberts could testify about several post-condemnation issues affecting Speedway’s property, including internal circulation difficulties, unsafe access, and nonconformance with zoning regulations. Speedway, for its part, stipulated that it would not elicit testimony about increased circuity, elimination of a median cut turn lane, or denial or impairment of access. The State additionally sought to exclude the valuation opinion of Gerald “Skipper” High, Speedway’s representative. It argued that he lacked relevant underlying data about two purported comparable sales that he had relied upon to value Speedway’s property. The trial court denied the State’s motion.\n\nSpeedway hired John DeShazo, a traffic engineer, to assess the impact of the State’s condemnation on vehicles entering and exiting the car wash and express lube. He identified two post-condemnation issues that, in his opinion, affected the safety of the drivers on the property. The first involved a reduction in the shared-access driveway’s throat depth—the area between the curb line and the first cross drive. Before the condemnation, the throat depth measured thirtyseven feet; after the condemnation, it measures thirteen feet. According to DeShazo, the reduction means that when a car turns left from the two-way driveway located along the southern side of the property onto the shared-access driveway, insufficient space exists for the vehicle to position itself perpendicular to Grapevine Mills Boulevard, causing the angled vehicle attempting to exit the property to block vehicles attempting to enter. The other post-condemnation safety issue that DeShazo identified concerned vehicles that utilize the two-way driveway on the southern part of the property. He explained that before the taking, when a vehicle heading to the express lube turned right onto the two-way driveway, sufficient space existed for each vehicle to remain on its side of the driveway. However, after the condemnation, when a vehicle turns right onto the two-way driveway, it will necessarily sweep over into the outbound side’s lane.\n\nRobert Baldwin, an urban planning and zoning consultant, testified that Speedway’s property complied with the City of Grapevine’s zoning regulations before the condemnation but that afterwards, it neither meets the requirement for a twenty-five foot landscaping buffer zone nor contains the required minimum percentage of open space; the condemnation, in his words, caused a “tumbling effect and move[d] everything north.” Baldwin also opined that an exemption for property that becomes nonconforming as a result of a government’s right-of-way acquisition would not apply to Speedway’s property. Ultimately, Baldwin thought that Speedway had four options: (1) seek a variance from the City of Grapevine’s Board of Adjustment, (2) seek to amend the site plan attached to Speedway’s conditional-use permit, (3) reconfigure the site by removing part of the car wash building, or (4) do something completely different with the property.\n\nHigh, Speedway’s representative, testified about his experience in the car wash industry, the reasons why Speedway located the car wash where it did, the market value of the whole property, problems with a cure plan devised for the State, and the viability of the car wash after the condemnation. High opined that the market value of Speedway’s property before the State’s condemnation was “[j]ust over [$]5.4 million.” He based his opinion, in part, on two car wash sales that occurred six and nine months after the State acquired Speedway’s property—one that sold for $4.9 million and the other that sold for $5.25 million. High opined that Speedway’s property was no longer viable as a car wash because the condemnation had altered the site’s ability to function as such. High did not offer any other opinions about the value of Speedway’s property, including the value of the part condemned, the value of the remainder property after condemnation, or the amount of any damages sustained by the remainder property.\n\nMcRoberts, Speedway’s appraisal expert, utilized the cost approach to value Speedway’s property. Relying on four land sales, and after making adjustments, he valued the land at $24.75 per square foot for a precondemnation value of $1,200,000.00 (rounded). For the improvements to the property, including the car wash and express lube buildings, he calculated a depreciated value of $2,008,070.00. Those figures taken together, and rounded, McRoberts opined that before the condemnation, Speedway’s entire property had a market value of $3,200,000.00. For the value of the part condemned, McRoberts again valued the land at $24.75 per square foot, for a value of $103,678.00. For the value of the site improvements within the part condemned, McRoberts calculated a depreciated value of $35,724.00. McRoberts thus opined that the condemned part had a total value of $139,402.00. As alluded to, McRoberts opined that before the condemnation, the highest and best use of the property was its existing use—a car wash—because the site was designed specifically for that very purpose. But he also opined that the condemnation had affected the property’s functionality so greatly that the property had experienced a change in its highest and best use to something like a small veterinary clinic or an office. McRoberts concluded, therefore, that the land had a reduced value of $14.00 per square foot, for a value of $626,178.00 (44,727 square feet); that the building and site improvements had no value, except for $15,000.00 in salvage value; and that after the condemnation, the remainder property had a market value of $641,178.00. Considering his calculations for the value of the remainder property before the condemnation ($3,060,598.00) and the value of the remainder property after the condemnation ($641,178.00), McRoberts opined that Speedway’s remainder property had sustained damages in the amount of $2,419,420.00. McRoberts then added $190,000.00 to that figure for the cost to demolish the improvements, for a total damage opinion of $2,609,420.00. Adding the value of the part condemned to that figure, McRoberts opined that Speedway was entitled to compensation in the total amount of $2,748,822.00.\n\nRonan O’Connor, a land planner, evaluated Speedway’s property both before and after the condemnation and devised a conceptual plan to address some of the internal circulation and nonconformance issues caused by the condemnation. His cure plan proposed moving the western portion of the twoway driveway north by eliminating the southern-most vacuum island, shifting a nearby landscape island north, and adding a “bubble”-shaped area of landscaping to the southwest part of the property. According to O’Connor, the plan would restore the function of the throat depth and eliminate the conflict between vehicles entering and exiting the two-way driveway. He admitted, however, that the cure plan would not alleviate the property’s post-condemnation failure to comply with the twenty-five foot landscaping buffer-zone requirement and the fifty-foot building setback-line requirement, but he figured that the exemption for properties that become nonconforming as a result of a government’s right-of-way acquisition would apply to Speedway’s property. Stan Himes estimated the hard costs of O’Connor’s cure plan to be $131,421.00.\n\nRon Stombaugh, Assistant Director of Development Services for the City of Grapevine, testified that a landowner whose property failed to comply with the City of Grapevine’s landscaping buffer-zone requirement or building setback-line requirement could seek either a variance or to amend its conditional-use permit but that Speedway had done neither. Stombaugh had several conversations with High about Speedway’s property, but he never told High that he could not request a variance or attempt to amend Speedway’s conditional-use permit. As for Speedway’s post-condemnation property nonconformities, like O’Connor, Stombaugh opined that the property would be “grandfathered” under the exemption for properties that become nonconforming as a result of a government’s right-of-way acquisition.\n\nUsing the cost approach to value Speedway’s property, Wall, the State’s appraisal expert, valued the land at $22.00 per square foot for a pre-condemnation value of $1,076,152.00. Wall valued the buildings at $897,325.00 and the site improvements at $548,326.00, for a combined depreciated value of $1,445,651.00. Those figures taken together, Wall opined that before the condemnation, Speedway’s entire property had a market value of $2,521,803.00. For the value of the part condemned, Wall again valued the land at $22.00 per square foot, for a value of $92,158.00. For the value of the site improvements within the part condemned, Wall calculated a depreciated value of $67,631.00. Wall thus opined that the condemned part had a total value of $159,789.00. Considering his calculations for the value of the entire property before the condemnation ($2,521,803.00) and the value of the part condemned ($159,789.00), Wall opined that before the condemnation, the remainder property had a market value of $2,362,014.00. Wall therefore opined that the value of the remainder property had not changed after the condemnation—he valued the land at $22.00 per square foot for a value of $983,994.00 (44,727 square feet) and the depreciated buildings and site improvements at $1,378,020.00 ($897,325.00 plus $548,326.00 less $67,631.00) for a total remainder value of $2,362,014.00. Considering his calculations for the value of the remainder property before the condemnation ($2,362,014.00) and the value of the remainder property after the condemnation ($2,362,014.00), Wall opined that Speedway’s remainder property had sustained damages in the amount of $0, excluding a total cost to cure of $105,826.00. Considering that figure and the value of the part condemned ($159,789.00), Wall opined that Speedway was entitled to total compensation in the amount of $265,615.00. High thought Wall’s remainder-damages opinion was “ludicrous.”"
  },
  "outcome": {
   "amount": 4493218,
   "amountIsTheRequestedAmount": false,
   "date": "2017-10-19",
   "description": "The Tarrant County jury found the part condemned was worth $92,190 and the remainder sustained damages of $4,401,028 ($4,493,218 in total), well above the owner's appraiser's $2,748,822 and the State's appraiser's $265,615 (the special commissioners had awarded $954,285). The trial court signed judgment for Speedway for $3,538,933 plus prejudgment interest after crediting the State's $954,285 deposit, and denied a new trial. The Fort Worth Court of Appeals affirmed on October 19, 2017. No attorney's fees in a Texas condemnation award.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 4493218,
   "finalNote": "Affirmed; amount is the sum of the two verdict lines (the deposit is part of it; judgment $3,538,933 is net of the $954,285 deposit)."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "commissioners",
    "amount": 954285,
    "kind": "commissioners award (deposited)",
    "quote": "The trial court then appointed special commissioners, who awarded damages in the amount of $954,285.00."
   },
   {
    "by": "condemnor",
    "amount": 265615,
    "kind": "appraisal",
    "quote": "Wall opined that Speedway was entitled to total compensation in the amount of $265,615.00."
   },
   {
    "by": "owner",
    "amount": 2748822,
    "kind": "appraisal",
    "quote": "McRoberts opined that Speedway was entitled to compensation in the total amount of $2,748,822.00."
   },
   {
    "by": "owner",
    "amount": 5400000,
    "kind": "owner opinion (entire-property value)",
    "quote": "[j]ust over [$]5.4 million.”",
    "note": "owner representative High's pre-taking value of the whole property, not a compensation figure"
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "marchbanks-v-neema-2025",
  "source": {
   "caseName": "Marchbanks v. Neema, L.L.C.",
   "court": "Court of Appeals of Ohio, Sixth Appellate District (Erie County), on appeal from the Erie County Court of Common Pleas",
   "docket": "No. E-24-010, 2025-Ohio-777 (trial court No. 2022 CV 0397)",
   "decided": "2025-03-07",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/6/2025/2025-Ohio-777.pdf",
   "excerptNote": "Verbatim paragraphs 2-38 of the Facts and Procedural History (the project and parcels, ODOT's deposit, the motion in limine and voir dire request, the owner representative's testimony, the owner's appraiser Kumler, ODOT's traffic engineer Balsamo and appraiser Farmer), each paragraph whole. Removed: paragraph 1 (the verdict total and the holding), paragraph 39 (the jury's itemized award and total), paragraph 40 onward (assignments of error and all analysis), the {¶ n} paragraph numbers, page numbers and the caption. Also removed: Kumler's indented quotation of his report in paragraph 21 (two sentences), because the PDF page number falls between its introduction and the quote so it cannot be matched without a trim; its substance (corner parcel reduced to interior parcel, inhibited circulation) is in paragraphs 15, 21 and 22."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the property owner, Neema, LLC, whose Marathon gas station and convenience store (with an adjoining vacant parcel) at State Routes 4 and 99 in Erie County, Ohio lost land, easements and two driveways to ODOT's roundabout project. The owner refused ODOT's deposit, and the appropriation case is set for a jury trial on compensation for the take and damage to the residue.",
   "documentText": "This appropriation action stems from an ODOT project to convert the intersection of State Routes 4 (Hayes Avenue) and 99 (Skadden Road) in Erie County, Ohio, from a two-way stop to a single lane roundabout. Neema owns two parcels of property abutting the routes to the west and east and totaling 8.9 acres. A Marathon gas station and convenience store operates on the northern, 3.0459-acre triangular parcel. The southern, 5.8047-acre parcel is vacant. Prior to the roundabout’s construction, store patrons had five access points, two on S.R. 4 (drives 1 and 2), and three on S.R. 99 (drives 3, 4, and 5). Following construction, the two access points on S.R. 4 and only the southernmost access point, drive 5, on S.R. 99 remained.\n\nOn September 16, 2022, ODOT filed an appropriation action in the Erie County Court of Common Pleas and deposited $47,475 with the clerk of courts which represented the total sum it believed would compensate Neema as a result of the appropriation. The action involved permanent and temporary easements and the taking of approximately two-tenths of an acre of land. Neema answered the complaint noting its refusal to accept ODOT’s offer.\n\nFollowing discovery, which included the deposition of Neema’s expert appraiser Dwight Kumler, ODOT filed a motion in limine requesting that the trial court prohibit Neema from presenting any evidence at trial regarding its expert’s appraisal or owner’s opinion of value. ODOT argued that the expert improperly valued the two parcels separately when he should have applied the “unit rule,” which requires appraising the entire tract as a whole. ODOT also claimed that Neema’s expert improperly valued the impact of the removal of the stop signs as a component of the damages to the residue. Finally, ODOT stated that the court should bar the owner’s opinion testimony because it was based on the expert’s improper appraisal. The court summarily denied the motion.\n\nThe jury trial in the matter commenced on January 16, 2024. Consistent with its motion in limine, ODOT requested the opportunity to voir dire Neema’s expert outside the jury’s presence regarding his valuation process, including the valuation of the removed stop signs. Neema countered that ODOT was not entitled to a second opportunity to argue its motion in limine which had already been briefed and rejected by the court. Neema further argued the stop sign removal was a “non-issue” and would not be raised directly during the expert’s testimony.\n\nODOT responded that despite Neema’s argument it would not present testimony regarding damages from the removal of the stop signs, the value assigned to the property during the expert’s deposition remained unchanged. Neema again insisted that it was a non-issue because the expert did not attribute one dollar in compensation for the removal of the stop signs. The court denied ODOT’s request.\n\nNeema’s representative, Sunny Patel, testified that he has operated a gas station on the northern parcel of Neema’s property since 2019. He explained that the property was ideally located between the turnpike and Cedar Point with high traffic volume in the summer. Prior to the taking, patrons could access the store’s parking lot from either S.R. 4 or S.R. 99.\n\nPatel testified that Neema made several improvements to the property, including connecting to the local water lines, installing indoor restrooms, reconfiguring the interior of the store, and installing EV charging stations. Patel stated that the improvements totaled over $600,000.\n\nPatel asserted that drives 1 through 4 were generally utilized by passenger vehicles. He testified that prior to the taking, store patrons had direct access to the gas canopy, which included four gas pumps, by drives 3 and 4 off S.R. 99.\n\nThe gas station has a diesel canopy located at the back of the northern parcel. Patel stated that semi-trucks and larger vehicles generally accessed these fuel pumps by using drive 5. He maintained that passenger vehicles generally avoided drive 5 because they had to traverse the unpaved, bumpy, and unlit portion of the lot. Passenger vehicles would also have to navigate approximately 6 to 7 tractor-trailers frequently parked in the area. Three short video clips of the gas station depicting the flow of truck traffic, including numerous parked trucks, were played for the jury.\n\nThe appropriation caused drive 5 to be relocated further south onto the southern parcel. Patel testified that Neema put down asphalt shavings to improve the drive’s condition but that it continually deteriorates due to truck traffic and weather.\n\nBefore the appropriation, fuel trucks entered the property from drives 4 or 5 and exited through drive 3. According to Patel, fuel deliveries are now more difficult because the trucks had to enter and exit through drive 5.\n\nPatel testified regarding the general impact the reconfiguration had on the flow of traffic on the property. He stated that S.R. 99 now lacks a clear entrance to the gas station and that the truck parking in the area adds to the congestion. Patel testified that patrons going south on S.R. 4 generally do not turn into drive 2 (the drive closest to the roundabout) for fear of backing up traffic. He stated that there is also a double yellow line and it is unclear whether you can legally turn left onto the property.\n\nPatrons often pass drive 2 and enter drive 1, on the western side of the property. Patel testified that the EV chargers are located on that side of the property and that due to the congestion, they disconnected the south charger over fear that either it or the nearby propane tank could get hit.\n\nPatel asserted that the northern parcel can no longer be considered a corner parcel because it has no ingress or egress on S.R. 99, which he contends decreased its salability.\n\nPatel testified that the State offered $47,000 in compensation for the appropriation. He rejected the offer because the cost of work needed to improve the interior mobility of the property far exceeded the offer. Patel said that the sum offered barely covered moving the gas station sign.\n\nPatel stated that ODOT’s temporary easements included drives 2 and 5. Drive 2 was closed for the month of August, peak tourist time, while they connected the roundabout. Patel noticed a dramatic decrease in customers.\n\nNeema’s counsel asked Patel what he believed the value of both parcels was before and after the appropriation. ODOT objected, arguing that Patel’s deposition testimony evidenced that he had no independent valuation and that the answer would rely on the valuation of the appraiser; thus, at minimum, the testimony is cumulative. The court overruled the objection. Patel testified that before the construction, he valued the property at 1.5 million. He believed that the property decreased approximately $500,000 in value after the construction. Patel agreed that his and the appraiser’s valuations were consistent.\n\nOn cross-examination, Patel acknowledged that after the appropriation, patrons still had access to the station from S.R. 4, using drives 1 and 2, and S.R. 99, but only through the dirt road on drive 5.\n\nNeema’s appraiser, Dwight Kumler, testified, over a continuing objection, that Neema hired him to prepare a market value appraisal of the property. Kumler’s July 3, 2023 report details the history of the property, including the gas station operating on the northern parcel, and the improvements made to the property.\n\nKumler testified that he valued the entire property, assigning separate values to the northern and southern parcels. Prior to the taking, the parcels totaled 8.8866 acres, after the taking, 8.6419 acres. Although ODOT took only a small physical amount of property, Kumler stated that the residual property sustained significant damage. He attributed the main source of the damage to the removal of drives 3 and 4 off of S.R. 99. Kumler explained that inhibited traffic flow results from the reduction to one access point on S.R. 99, roughly 300 feet from the building and previously the least used route by passenger vehicles.\n\nKumler valued the pre-taking property at $1,518,000. Using the sales comparison valuation approach, he separately valued the northern parcel at $1,050,000. Kumler explained that reviewing similar sales is the most useful approach in valuing older properties. The computation represents a per pump valuation of $175,000, which Kumler arrived at by reviewing comparable, recent gas station sales. Finding comparable sales, Kumler looked at whether the stations were located on interior corner parcels, the age of the improvements, number of gas pumps, and overall location. Kumler stated that corner parcels had higher values ranging from 22 to 37 percent.\n\nKumler used the same sales comparison approach when valuing the vacant southern parcel. The sales ranged from $52,000 to $91,000 per acre. He testified that the pre-taking value was $80,000 per acre, or $468,000. After the taking, Kumler’s appraisal was $464,000 which represented the reduction in actual acreage.\n\nKumler used the income approach in valuing the loss from the temporary easements. He considered the nuisance of the construction itself including storage of construction vehicles and materials and concluded that $66,000 was fair compensation. Kumler concluded that $40,000 would compensate Neema for the removal and replacement of the gas station sign.\n\nDuring cross-examination, ODOT questioned Kumler regarding his prior deposition testimony. Kumler acknowledged that the operation of a gas station and convenience store is the property’s highest and best use. Kumler agreed that he conducted an initial appraisal of the property in August 2022, and that his final report is dated July 2023. Kumler also agreed that the appraisal numbers were unchanged.\n\nKumler agreed that the property has access on S.R. 4 and that it still has access on S.R. 99, though reduced from three access points to one. Kumler acknowledged that the property still functions as a gas station and convenience store.\n\nODOT then presented the expert testimony of Gina Balsamo, a traffic engineer, who conducted a site circulation analysis within the property. Her staff visited the site, reviewed videos provided by ODOT, and used an “industry standard” software known as AutoTURN to simulate ingress and egress to the property, travel to the fuel pumps and convenience store, and the charging stations both before and after construction.\n\nBalsamo reviewed several AutoTURN program photos for the jury. She concluded that passenger vehicle traffic could continue to access the fuel pumps, the store, and the EV charging stations using the remaining drives. Patrons were also able to use the drives to exit the property. Balsamo testified that trucks, both fuel delivery and those filling up with diesel fuel, had sufficient room to maneuver around the property including ingress and egress. Balsamo ultimately concluded that the closure of the two drives on S.R. 99 would not adversely impact the site because vehicles could “still come onto site from all the different directions and leave the site from all the different directions as they could before.”\n\nNeema cross-examined Balsamo about her opportunity to personally observe the “post take” traffic flow. In addition to the hour video, Balsamo stated that she drove past the site on the way to court that morning. She reiterated that the AutoTURN simulator showed the taking had no adverse effect on the site. Balsamo admitted that the simulation ran one vehicle at a time and maneuvered around permanent structures, not parked vehicles. She agreed that the program failed to consider truck congestion. It also failed to consider the unpaved condition of drive 5, specifically the potholes. Balsamo stated that drivers watch for such hazards and would be able to avoid them.\n\nAnother ODOT expert, licensed real estate appraiser Sean Farmer, conducted two formal visits and inspections of Neema’s property resulting in two appraisals. His initial January 2022 appraisal set the appropriation damages at $47,400. Farmer conducted a second appraisal for litigation purposes that he issued in June 2023.\n\nFarmer stated that he valued the property to determine its highest and best use. He explained that the term highest and best use is the “reasonably probable use of property that results in the highest value.” Farmer determined that Neema’s current use of the property was its highest and best use.\n\nFinding it appropriate under the circumstances, Farmer testified that he valued both parcels as one and used all three valuation approaches— the cost approach, sales comparison approach, and the income approach— to determine the fair market value of the property before and after the taking. Farmer stated that he did so as a check to aid in ensuring the appraisal’s accuracy. Farmer then explained the comparables he used in under each approach.\n\nUsing the cost approach, Famer set the pre-taking value of the property at $1,154,090. The sales comparison approach yielded a $1,062,500 value for the property. Finally, the income approach set the value at $1,069,315. Famer then determined that the most accurate was the sales comparison approach – and set the pre-taking value of the property at $1,065,000.\n\nIn determining the post-taking value, Farmer factored in the easements, the loss of land, and the loss of the two drives. He reviewed and included Balsamo’s site circulation study in his report. Farmer stated that the permanent easements along S.R. 99 did not impact the property’s functionality and caused no damage to the residue. Likewise, Farmer concluded that the 18-month temporary easements, impacting approximately .0422 acres, did not decrease the value of the residue.\n\nFarmer testified that he attributed no loss of value to the residue following the removal of drives 3 and 4. He felt that the closure had no long-term impact on the fair market value of the property. Farmer saw no compensable, adverse impact to internal circuity. Farmer acknowledged Neema’s entitlement to approximately $30,000 in compensation for the removal, relocation, and replacement of the Marathon sign. Farmer also assigned a $3,600 “cost to cure,” or damages mitigation sum. In other words, Neema would receive compensation for the value of a new sign, not the depreciated value of the removed sign.\n\nAfter the taking, using the cost approach Farmer valued the entire property at $1,056,780. With the sales comparison approach he set the value at $1,020,000. Under the income approach Farmer valued the property at $996,260. Farmer assigned $1,018,910 as the final post-taking value of the property.\n\nFarmer stated that he valued the temporary easements at $260 after setting the per acre value at $40,000 and comparing the area of the takings with the 18-month duration. He set the total amount of compensation for the takings at $46,090; $9,790 for the permanent easement and $36,300 for the sign replacement.\n\nOn cross-examination, Farmer acknowledged that he conducted over one thousand appraisals in appropriation cases though never representing a private property owner. He also agreed to never valuing a gas station. Farmer did not consider it important to review the site traffic videos prior to his valuation. And he did not consider the number of passenger vehicles using drive 5 or how many tractor trailers park in the area. Farmer admitted that multiple tractor trailers could impact the flow of traffic in the area. He agreed that the closed drives were closer to the market and that one drive is not equivalent to three. Farmer further acknowledged that drive 5 was unpaved."
  },
  "outcome": {
   "amount": 452020,
   "amountIsTheRequestedAmount": false,
   "date": "2025-03-07",
   "description": "The jury awarded Neema $452,020: $19,500 for the 0.2447 acre taken, $38,000 for improvements taken, $520 for the temporary easements and $394,000 damage to the residue (against ODOT's $47,475 deposit and its appraiser's $46,090), and the Erie County Court of Common Pleas entered judgment on February 6, 2024. The Sixth District affirmed on March 7, 2025, holding the owner's appraiser could value the two tax parcels separately and that his residue damages were not shown to rest on the non-compensable stop-sign removal.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 452020,
   "finalNote": "Affirmed. Verified against paragraphs 1 and 39. The opinion never states the owner's appraiser's total compensation as one figure (only his $1,518,000 before value and components), so the verdict cannot be compared to it; the owner's own opinion was a decrease of about $500,000."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "condemnor",
    "amount": 47475,
    "kind": "deposit",
    "quote": "ODOT filed an appropriation action in the Erie County Court of Common Pleas and deposited $47,475 with the clerk of courts"
   },
   {
    "by": "condemnor",
    "amount": 47000,
    "kind": "initial offer",
    "quote": "Patel testified that the State offered $47,000 in compensation for the appropriation."
   },
   {
    "by": "condemnor",
    "amount": 47400,
    "kind": "appraisal (initial)",
    "quote": "His initial January 2022 appraisal set the appropriation damages at $47,400."
   },
   {
    "by": "condemnor",
    "amount": 46090,
    "kind": "appraisal (litigation)",
    "quote": "He set the total amount of compensation for the takings at $46,090"
   },
   {
    "by": "owner",
    "amount": 500000,
    "kind": "owner opinion",
    "quote": "He believed that the property decreased approximately $500,000 in value after the construction."
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "marchbanks-v-ice-house-ventures-2024",
  "source": {
   "caseName": "Marchbanks v. Ice House Ventures, L.L.C.",
   "court": "Court of Appeals of Ohio, Tenth Appellate District (Franklin County), on remand from the Supreme Court of Ohio, on appeal from the Franklin County Court of Common Pleas",
   "docket": "No. 21AP-24, 2024-Ohio-417 (trial court No. 16CV-7726)",
   "decided": "2024-02-06",
   "url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2024/2024-Ohio-417.pdf",
   "excerptNote": "Verbatim from the first quoted paragraph of the background (quoting Ice House II/Ice House I): the project, the appropriation and ODOT's deposit, both appraisals with their components, and the parking-loss sentence. Removed: the record citations in parentheses (the first of which spans a line the PDF splits), and everything from 'Ultimately, the parties reached a settlement prior to trial' on: the settlement terms, the Parking Mitigation Property, ODOT's failure to convey, the motion to enforce and the $900,000 breach award, the appellate history, footnotes and all analysis."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": false,
   "description": "We represent the property owner, Ice House Ventures, LLC, in ODOT's appropriation of part of its Brewery District property in downtown Columbus, Ohio for the reconstruction of Interstates 70 and 71. The owner disputes the compensation ODOT deposited, including the damage to the residue from lost parking.",
   "documentText": "ODOT is reconfiguring and improving Interstates 70 and 71 through downtown Columbus, Ohio. As part of the project, ODOT needed to appropriate a portion of IHV’s real property located in the area known as the Brewery District (“the Property”). Thus, on August 17, 2016, ODOT filed an appropriation action in the Franklin County Court of Common Pleas and deposited $343,280 with the Clerk of Courts. Subsequently, each of the parties obtained its own appraisal reflecting the compensation due IHV as a result of ODOT’s appropriation. ODOT’s appraiser, Brian Barnes, opined the total compensation due IHV was $370,000, including $168,064 for land taken and $201,936 in damages to the residue. IHV’s appraiser, Debi Wilcox, opined the total compensation due IHV was $2,509,777, consisting of $149,190 for land taken and $2,200,810 in damages to the residue. Both appraisers considered the loss of parking spaces to be a significant component of the respective determinations of damages to the Property’s residue."
  },
  "outcome": {
   "amount": 1800000,
   "amountIsTheRequestedAmount": false,
   "date": "2024-02-06",
   "description": "The case settled before trial by an October 11, 2018 agreed judgment entry: ODOT would pay $900,000 'as partial consideration' and convey a 12-space parking lot (the Parking Mitigation Property). ODOT could not convey the lot because the City of Columbus would not transfer it, and on June 18, 2019 (re-entered with Civ.R. 54(B) language on January 12, 2021) the trial court held ODOT in breach and awarded $900,000 damages for the failure to convey, plus attorney fees and costs to be set later. The Tenth District first reversed (2021-Ohio-4195), the Supreme Court of Ohio reversed that decision (2023-Ohio-1866), and on remand the Tenth District affirmed the trial court on February 6, 2024.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "affirmed",
   "finalAmount": 1800000,
   "finalNote": "JUDGMENT CALL, reviewer to confirm: amount = $900,000 settlement cash + $900,000 court-found damages standing in for the undelivered parking lot = $1,800,000 total compensation for the taking, fees excluded (fees awarded, amount not stated). Settlement, not a verdict. The opinion does not say whether ODOT's $343,280 deposit is part of the $900,000 cash or paid on top of it; if on top, the total would be $2,143,280. Final outcome is after the Supreme Court remand and the 2024 affirmance."
  },
  "expectedRole": "Property Owner",
  "offers": [
   {
    "by": "condemnor",
    "amount": 343280,
    "kind": "deposit",
    "quote": "ODOT filed an appropriation action in the Franklin County Court of Common Pleas and deposited $343,280 with the Clerk of Courts."
   },
   {
    "by": "condemnor",
    "amount": 370000,
    "kind": "appraisal",
    "quote": "ODOT’s appraiser, Brian Barnes, opined the total compensation due IHV was $370,000, including $168,064 for land taken and $201,936 in damages to the residue."
   },
   {
    "by": "owner",
    "amount": 2509777,
    "kind": "appraisal",
    "quote": "IHV’s appraiser, Debi Wilcox, opined the total compensation due IHV was $2,509,777, consisting of $149,190 for land taken and $2,200,810 in damages to the residue."
   }
  ],
  "category": "eminent-domain",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "south-pacific-lumber-v-imperial-pacific-2023",
  "source": {
   "caseName": "South Pacific Lumber Co. v. Imperial Pacific International (CNMI), LLC",
   "court": "U.S. District Court for the Northern Mariana Islands (findings of fact and conclusions of law after bench trial)",
   "docket": "Case No. 1:21-cv-00027 (ECF No. 42)",
   "decided": "2023-08-25",
   "url": "https://www.nmid.uscourts.gov/sites/nmid/files/opinions/1-21-cv-00027-42.pdf",
   "excerptNote": "Verbatim from the introduction, Procedural History, Findings of Fact (lease, extension, access and padlocking, holdover notice) and, from the Conclusions of Law, only the parties' positions, the quoted HTA double-rent and fee provisions, the CNMI interest cap, SPLC's interest concession and the lease's fee clause. Kept: the court's pre-trial partial-summary-judgment liability rulings (no figures). Removed: the sentence stating the total awarded at trial and its components, the sentence stating the partial-summary-judgment dollar award, the court's finding that IPI always had access, the constructive-eviction holding, the double-rent accrual ruling, the interest ruling, the damages section and table, the conclusion, footnotes 1-7 (and footnote markers 1-4 dropped from their sentences), record citations in parentheses, PDF line numbers, page footers and the caption. Also removed in review: the finding that from June 8, 2022 'IPI had all the keys to use and access the Warehouse', which resolves the disputed constructive-eviction question."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the landlord, South Pacific Lumber Co., in its suit against its warehouse tenant Imperial Pacific International (CNMI), LLC for unpaid rent, interest and holdover double rent under the CNMI Holdover Tenancy Act after the tenant stopped paying in March 2020; the tenant claims constructive eviction, and the remaining claims are set for a bench trial.",
   "documentText": "Plaintiff James Whang dba South Pacific Lumber Co. (“SPLC”) initiated this civil action against Defendant Imperial Pacific International (CNMI), LLC (“IPI”) for IPI’s alleged failure to pay rent and other costs on a property SPLC leased to IPI. SPLC claims IPI failed to satisfy the past due rental balance for over two years while IPI occupied the property, therefore entitling SPLC to remedies afforded in contract law and the Holdover Tenancy Act (“HTA”) of the Commonwealth of the Northern Mariana Islands (“CNMI”), see CMC §§ 40201 - 40206. Having granted SPLC partial summary judgment on its breach of contract claim (Decision & Order Granting Pl. Partial Summ. J., ECF No. 20), SPLC now seeks damages pursuant to the HTA. IPI, by contrast, asserts that SPLC’s damages must be limited based on SPLC’s constructive eviction of IPI, precluding it from fully vacating the premises.\n\nSPLC asserts five causes of action against IPI: (1) summary possession under the HTA; (2) double rent due under the HTA; (3) breach of contract; (4) in the alternative, unjust enrichment or quantum meruit; and (5) account stated. (Compl. 5-8.) IPI answered (ECF No. 3).\n\nIn June 2022, SPLC moved for summary judgment requesting judgment in the amount of $723,221.82 for IPI’s breach of contract from March 2020 through June 2022. Troublingly, in its reply to IPI’s opposition, SPLC sought judgment on its claim for unpaid rent and double rent under the HTA, expanding its initial request for relief from $723,221.82 to $920,616.00. The Court granted partial summary judgment solely on SPLC’s third cause of action for breach of contract because “SPLC does not identify the legal basis for granting partial summary judgment as to any [of its other] claims[.]” The Court denied summary judgment seeking double rent because “SPLC did not seek [double rent] in its initial motion for summary judgment,” and new arguments may not be introduced in a reply brief. As a result, the Court limited judgment to damages in unpaid rent between March 2020 (when IPI ceased making payments) and May 2021 (when the Rental Agreement expired), as well as utilities and accrued interest for the same period.\n\nPartial summary judgment granted, and settlement on SPLC’s other claims having been unsuccessful, the matter proceeded to trial on SPLC’s remaining causes of action including: rent due from June 2021 to September 2022, double rent, interest, and utilities for the same period.\n\nAt closing, SPLC and IPI contested whether IPI was constructively evicted from SPLC’s property without opportunity to vacate. Ultimately, SPLC requested a total of $787,436.01 in past due rent, interest on the balance, and double rent (Am. Ex. 5.1); SPLC waived its request for any further utilities owed beyond that granted in the Court’s award of partial summary judgment.\n\nPlaintiff South Pacific Lumber Co. is in the business of wholesale construction materials and warehouse rentals. It is a sole proprietorship owned by James Whang. Among its warehouse units, SPLC owns the leasehold interest of Lot No. 057 E 29 located at Lower Base, Saipan which includes a commercial warehouse space (“Warehouse”) identified as Building B and C. On May 8, 2015, IPI entered into a Warehouse Rental Agreement (“Rental Agreement”) with SPLC for the Warehouse. The Rental Agreement provided that IPI would occupy the Warehouse for one year commencing on May 11, 2015 and ending on May 11, 2016 with the option to extend the Rental Agreement for up to five years. IPI agreed to pay SPLC monthly rent and to cover the costs of all utilities and trash collection services. SPLC has never contested whether IPI paid its monthly rent or other costs during this first year.\n\nPrior to the expiration of IPI’s one year lease in the Warehouse, SPLC agreed to extend the Rental Agreement through May 10, 2021. The total area IPI would occupy was increased to 19,200 square feet and rent amounted to $16,240.00. SPLC has never contested that IPI failed to pay its rent and utilities until March 2020.\n\nIn March 2020, IPI started becoming delinquent in its payments to SPLC. Thus, in April 2020, Mr. Whang noticed IPI of its nonpayment and indicating he would bar access to the Warehouse. John Cepeda and George Pangelinan, IPI representatives who worked in the Warehouse, requested that Mr. Whang allow IPI continued use and access until August or September so they could remove certain essential items (computers and trucks). Mr. Whang agreed, and IPI subsequently removed its essential equipment. Mr. Whang padlocked the Warehouse in August 2020. During the period in which the Warehouse was padlocked, IPI requested access four separate times. In the first two instances, IPI needed to retrieve its tools and then Xerox machines and equipment. Mr. Whang consented both times and unlocked the padlock within 24 hours to give IPI access. IPI also sought access two other times to retrieve files and other inventory, which was granted. According to Mr. Whang, he never declined IPI’s requests to access the Warehouse during the period in which it was padlocked, and IPI never complained about access issues.\n\nAlthough Mr. Whang padlocked one entryway into the Warehouse, his testimony revealed there were in fact two access points into the Warehouse: two service doors on the left and the right that lead to unlocked sliding doors. When IPI began occupying the Warehouse, SPLC provided IPI with four keys: two keys for the left service door and two keys for the right service door. At the outset, IPI’s representative in charge of warehouse operations, John Cepeda, informed Mr. Whang that IPI changed the locks on the service doors. By the time Mr. Whang sought to preclude access, he only padlocked one service door. IPI had never returned the keys originally handed over or the keys to the changed locks until it completely vacated the Warehouse in September 2022. Even then, IPI only returned one set of the original keys. IPI’s requests for access via the padlocked service door was, Mr. Whang presumes, purely out of professional courtesy.\n\nOn June 8, 2022, IPI, at the suggestion of Mr. Whang, consolidated their inventory and ultimately reduced the amount of space occupied to save money. At this point, Mr. Whang removed the padlock so IPI could consolidate its inventory. IPI never gave that key back until it fully surrendered possession.\n\nIPI has not remitted payment to SPLC since March 2020 when IPI’s monthly rent was at $16,240.00 for 19,200 square feet. IPI’s Rental Agreement with SPLC expired in May 2021. After the written agreement expired, on July 28, 2021, SPLC posted a “3 Day Notice to Pay Rent or Quit” on the Warehouse door. In that Notice, IPI was informed that as of July 2021, it was indebted to SPLC for a total of $386,512.00 for the rent and use of the Warehouse. “SPLC demands payment of the rent and possession of the premises within 3 days . . . from the date of delivery of this notice, to wit: on or before the day of August 2, 2021.” “Failure to pay rent . . . may subject [IPI] to attorney’s fees as well as any and all statutory penalties, including but not limited to damages equal to double the amount of rent due on the premises pursuant to the Hold Over Tenancy Act.” Almost a year later, on June 8, 2022, IPI reduced the amount of space it occupied and therefore SPLC prorated IPI’s monthly rent to $9,600.00 but still claimed this amount is subject to double rent pursuant to the HTA.\n\nNow, SPLC seeks damages pursuant to the HTA for unpaid rent, interest on those past due amounts, and double rent from June 2021 to September 2022. The parties contest whether IPI was given access to vacate the premises, and if not, whether SPLC is entitled to any damages as a result.\n\nIPI argues that SPLC “physically and/or constructively prevent[ed] and barr[ed] [IPI] from full, unfettered, and marginally reasonable possession, access, custody, and control to/of [IPI’s] property within the premises” between May 2020 and August 2021. As such, IPI maintains that damages should be limited. SPLC counters that IPI had access to alternative entrances into the Warehouse, and that in any event, Mr. Whang acquiesced in giving IPI access whenever IPI requested.\n\nIn addition to recovering possession, 2 CMC § 40206, and unpaid rent, 2 CMC § 40202, “[t]he landlord may also recover double the amount of rent due on the premises, or any part thereof, for the period during which the tenant refuses to surrender possession.” 2 CMC § 40205. The prevailing party may recover reasonable court costs, including attorney’s fees for any civil action brought under the HTA. 2 CMC § 40209.\n\nAs previously identified in the Court’s Decision and Order Granting Partial Summary Judgment (ECF No. 20 at 7 n.3), CNMI law calculates interest as being not higher than “one percent per month on the balance due on any such contract involving a principal sum of over $300.” 4 CMC § 5301. As illustrated in SPLC’s exhibit, SPLC concedes that the total interest rate shall not exceed one percent per month on the balance due. During the bench trial, SPLC indicated it would not apply the one percent interest to a past due balance that includes double rent.\n\nAdditionally, the Rental Agreement between SPLC and IPI also authorizes attorney’s fees and court costs. (Trial Ex. 2.5 at § 15 (“In the event any dispute or litigation arises out of this Rental, the prevailing party (Landlord) shall be entitled to an award of attorney fees and court costs as part of its relief or recovery.”).)"
  },
  "outcome": {
   "amount": 766595.33,
   "amountIsTheRequestedAmount": false,
   "date": "2023-08-25",
   "description": "On partial summary judgment the court awarded $243,600 rent for March 2020 to May 2021, $17,052 interest and $6,701 utilities ($267,353; the procedural history swaps the interest and utilities labels, the damages section and conclusion confirm them). After the January 11, 2023 bench trial the court rejected the constructive-eviction defense, held double rent accrued only from August 1, 2021 after the July 28, 2021 notice, and awarded a further $431,861 rent and double rent for June 1, 2021 to September 21, 2022 and $67,381.33 interest at 1% per month on the balance excluding double rent, entering judgment for $766,595.33 ($675,461 rent, $84,433.33 interest, $6,701 utilities) plus post-judgment interest and attorney's fees to be set on motion.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "none",
   "finalAmount": 766595.33,
   "finalNote": "No appeal reflected in the source. Amount verified against the conclusion. It includes the 1%-per-month interest ($84,433.33) because the court awarded it as part of the damages and the landlord's own demands ($787,436.01 at trial) include it, as the set does for other lease judgments with contract-rate interest (e.g. GSL Investments, Slyce); without interest the award is $682,162. Fees awarded, amount not stated."
  },
  "expectedRole": "Landlord",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 723221.82,
    "kind": "demand (summary judgment)",
    "quote": "SPLC moved for summary judgment requesting judgment in the amount of $723,221.82 for IPI’s breach of contract from March 2020 through June 2022."
   },
   {
    "by": "plaintiff",
    "amount": 787436.01,
    "kind": "demand (at trial)",
    "quote": "Ultimately, SPLC requested a total of $787,436.01 in past due rent, interest on the balance, and double rent"
   }
  ],
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "wax-nj2-v-gf55-partners-2015",
  "source": {
   "caseName": "Wax NJ-2, LLC v. JFB Construction & Development and GF 55 Partners",
   "court": "U.S. District Court for the Southern District of New York (findings of fact and conclusions of law after bench trial), 111 F. Supp. 3d 434",
   "docket": "No. 13-cv-4537 (AJN)",
   "decided": "2015-06-09",
   "url": "https://static.case.law/f-supp-3d/111/cases/0434-01.json",
   "excerptNote": "Verbatim from the opening paragraph and the Findings of Fact sections A-H (site selection and measurements, the October 9, 2012 plan and lease negotiations, GF55's responsibilities and the TR1, the plans and the Wax-JFB contract, the demising-wall problem, the construction deficiencies, both experts, JFB's default), whole paragraphs with record citations kept; plus, from the Conclusions of Law, the sentence framing Wax's two theories, GF55's concession on the quality of its inspections with Gross's cross-examination admissions, and GF55's two-part proximate-cause argument. Removed: the trial-procedure paragraphs, the court's characterizations resolving disputes (the 'ambiguous at best' sentence, the paragraph on Gulyas's comments, the brick-feature conclusion), section headings, and all legal analysis, holdings, the damages findings and the judgment (including the default-judgment amount against JFB). Caption from the Caselaw Access Project record. The opinion states no dollar figure for Wax's claimed damages outside the damages findings."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent Wax NJ-2, LLC, a European Wax Center franchisee that leased and built out a retail store in Forest Hills, Queens, in its architectural-malpractice suit against its architect GF 55 Partners over the store's measurement (on which its rent was based) and the architect's failure to catch code deficiencies in the contractor's work; the contractor has defaulted and the claims against the architect are set for a bench trial.",
   "documentText": "Plaintiff Wax NJ-2, LLC (“Wax” or “Plaintiff’) is a franchisee of European Wax Center, a nationwide chain of body-waxing salons. Wax owns and operates a European Wax Center location in the Forest Hills neighborhood of Queens, New York, and this lawsuit arises out of a dispute over the construction of that store. Invoking the Court’s diversity jurisdiction under 28 U.S.C. § 1332, Wax brings suit against the architectural firm responsible for designing and inspecting the construction of the store, GF 55 Partners (“GF55” or “Defendant”), alleging that GF55 committed architectural malpractice by failing to measure, design, and inspect the construction of the Forest Hills store with an acceptable degree of professional care. Wax also named as a defendant the contractor responsible for construction at the Forest Hills site, JFB Construction & Development (“JFB”), but that entity has opted not to defend itself since its counsel withdrew on September 23, 2014, see Dkt. No. 108, and failed to respond to an order to show cause why default judgment should not be entered, returnable November 4, 2014, see Dkt. No. 114. Accordingly, this matter came before the Court for a two-day bench trial held on October 20-21, 2014, involving only Wax’s claims against GF55.\n\nOn December 29, 2010, Daniel Perlman obtained from European Wax Center’s corporate office the rights to open a European Wax Center in the Forest Hills neighborhood of Queens, New York. Perl-man Decl. ¶¶ 1, 3. To that end, Perlman began negotiations with Sawyen, LLC (“Sawyen”), the landlord of 70-10 Austin Street in Forest Hills, for a commercial lease. Perlman Decl. ¶¶4, 13. Sawyen’s representative in the relevant negotiations was Swayne Shu, and the entity was represented in the negotiations by Howard Hua. Tr. 15:8-16. At the time that Perlman and Shu first began negotiations, the space that Wax would eventually occupy was comprised, at least in part, of two stores. Pl. Ex. 2; Perlman Decl. ¶ 4. Shu informed Perlman that Wax could take either existing store in its entirety, and add portions of the other store by moving the demising wall between them, as long as the store not used by Wax maintained an area of at least 600 square feet. Pl. Ex. 2; Perlman Decl. ¶¶ 4, 9-10.\n\nIn September 2012, Perlman contacted' David Gross, a founding partner at GF55, for the purpose of getting a preliminary measurement of the available space. Perl-man and Gross had worked together previously on a European Wax Center in Rutherford, New Jersey. Perlman Decl. ¶ 5; Gross Decl. ¶ 5. A September 21, 2012 email from Perlman to Gross indicates that GF55 agreed to take a look at the space on the morning of September 24, 2012, and to provide Wax with an initial concept and layout for the store. Pl. Ex. 2; Perlman Decl. ¶ 7; Gross Decl. ¶ 9. At the time, an existing tenant was still in at least one of the stores, and Perlman indicated to Gross that the evaluation would have to be conducted early in the day because the existing tenant did not want his workers to know that the tenant was being evicted. Pl. Ex. 2; Gross Decl. ¶ 9. Perlman’s email also told Gross that “[t]he $/sf is very high, so the less space I need for the waiting area and 6 wax rooms, the better.” Pl. Ex. 2. Gross anticipated that the pair would be able to “poke around” from 8:30 to 9 a.m. Pl. Ex. 2.\n\nGross emailed his initial plan to Perlman on the same day that he made his first visit to the site. See Pl. Ex. 2; Perlman Decl. ¶ 7. This drawing indicated that the area of the proposed European Wax Center was 1914 square feet, which compared to a measurement of 1775 square feet for the same area in an older drawing of the same space provided to Perlman by Saw-yen. Pl. Ex. 2; Perlman Decl. ¶ 7. Gross replied to Perlman that square footage is a “legal fiction,” and that he did not know how the landlord calculated the square footage. Pl. Ex. 2; Perlman Decl. ¶ 7. Gross’s figures represented a calculation of the “gross square footage,” which when used throughout this opinion refers to a measurement from the exterior of each external wall (that is, the front and back walls of the store), and the midpoint of each demising wall. A measurement of net square footage, by comparison, refers only to the usable interior space measured from the inside faces of all walls.\n\nThe site plan went through several revisions in the weeks after September 24, 2012, although it was always contemplated that Wax’s store would use all of the existing space as well as part of the adjacent space. Gross Decl. ¶ 12; Perlman Decl. ¶¶ 9-10. On October 9, 2012, GF55 provided Wax with a preliminary floor plan that Perlman found satisfactory, and began to use as the basis of his negotiations with Sawyen. Perlman Decl. ¶ 11. This plan indicated that the gross square footage of Wax’s store would be 1235 square feet, while the adjacent store would be left with 565 square feet. Gross Decl. ¶ 13; Perlman Decl. ¶ 11; PL Ex. 4. To draw the October 9, 2012 plan, Gross relied on measurements that he took with a tape measure at the site, as well as photocopies of plans provided to him by Perlman. Gross Decl. ¶ 10; Tr. 85:1. Gross made some assumptions based on the old plan about the thickness of the demising walls and the rear exterior wall, as he was not able to measure those items during his visit. Tr. 85:18-20; Gross Decl. ¶ 10.\n\nOn October 10, 2012, Perlman sent an email to Shu explaining the redesign, and attaching the October 9, 2012 plan. Pl. Ex. 13. Perlman’s email also indicated that it might be possible to “pick up” some space behind a wall on the right side of the Wax Center space, which would then allow him to cede some space elsewhere back to the adjacent store, but that this ultimately would not be clear until construction began. PL Ex. 13.\n\nWax and Sawyen entered into a letter of intent for a lease of the Austin Street space on November 20, 2012. PL Ex. 5. The letter identified the premises as having an area of “approximately 1235 square feet,” and a copy of the plan showing the same was attached. Pl. Ex. 5; Perlman Decl. ¶ 13. The initial term of the intended lease was eight years, with two consecutive renewal options for five years, and annual rent was calculated at $125 per square foot with a three percent annual escalation. Pl. Ex. 5. GF55 took no direct part in Wax’s lease negotiations with Saw-yen. Gross Decl. ¶ 14.\n\nDuring the continuing lease negotiations after Perlman and Shu signed the letter of intent, Sawyen’s attorney, Howard Hua, contacted Gross and informed him that an additional 26 square feet of space was not usable by the adjacent tenant, but could be added to the area of Wax’s store. Perl-man Deck ¶ 18. Perlman intended to accept the revision and pay additional rent at the same annual rate of $125 per square foot to include this space in his store. Perlman Decl. ¶ 18. GF55 drew a revised plan incorporating this space into Wax’s store, but measured the additional area as 29 square feet, for a new total of 1264 square feet. Perlman Decl. ¶ 18. Regardless of this measurement by GF55, Wax’s lease was adjusted upward by 26 square feet to incorporate this additional space, which became part of Wax’s store. Perl-man Decl. ¶ 21; PL Ex. 11. The 29 square-foot figure was never incorporated into the lease, nor relied upon to calculate Wax’s rent. The additional square footage was incorporated into GF55’s plans sometime between November 21, 2012 and December 3, 2012. See Def. Ex. 8 (November 21, 2012 plan); .Pl. Ex. 10 (December 3, 2012 plan); Tr. 16:9-11.\n\nWax and Sawyen finalized the lease on December 14, 2012, with Wax’s rent based on a measurement of 1261 square feet. PL Ex. 103. Attached to the lease were plans drawn by GF55, dated both November 30, 2012 and December 3, 2012. Pl. Ex. 103. The initial lease term runs from March 10, 2013 to December 31, 2020, with two successive options for Wax to extend the term by five years. PL Ex. 103.\n\nGF55 sent a proposed agreement for architectural services to Wax on November 20, 2012, the same day that Wax entered into the letter of intent with Sawyen. Gross Decl. ¶ 7; PL Ex. 6. Under the agreement, GF55’s scope of work included a site survey and evaluation; evaluation of the store conditions in order to advise Wax of potential demolition or engineering issues; creation of a layout design for corporate approval; creation of a construction document set; submission of the plans to Wax’s corporate office for final approval; submission of the plans to the New York City Department of Buildings for approval; issuance of the plans to be used for contractor bidding; revision of the plans for a final issue of construction documents after bidding; being “available to resolve construction issues” by phone or email; and providing design drawings for mechanical, electrical, and. plumbing work suitable for construction and bidding. Pl. Ex. 6.\n\nPerlman sent an email to Gross on November 26, 2012, indicating that the agreement was “fine” and that he would send a check. Perlman Decl. ¶ 16; Pl. Ex. 8. Perlman also included some questions “for clarification purposes,” one of which was about an extra charge for a “site survey drawing,” which Perlman explained was not charged when the parties worked on their first Wax location together in New Jersey. Pl. Ex. 8. Gross replied that the charge was for when he “went and measured and confirmed the size of the shop.” Pl. Ex. 8. Perlman raised no further issue regarding this charge.\n\nIn addition to its responsibilities laid out in the parties’ contract, GF55 agreed to perform certain inspections required by the City of New York under the Department of Buildings Directive 14. Tr. 104:1-8; Pl. Ex. 30. Directive 14 is a New York City Department of Buildings regulation that allows certain parties making applications to alter a building to conduct only a limited review for compliance with the New York City Building Code. To qualify for Directive 14 status, an alteration application must not affect a building’s Certificate of Occupancy. Gavosto Decl. ¶ 7. In a February 14, 2013 email, Irene Berzak, an expeditor with whom Gross worked and who was initially involved with the Austin Street project, explained to Gross the requirements for conducting a compliance inspection under Directive 14. Pl. Ex. 51. These responsibilities were: 1) making sure the finished construction conforms with the approved plans and, if not, amending the plans to match the conditions; and 2) doing whatever is required by code for special inspection obligations assumed under the TR1 form. Pl. Ex. 51. On January 17, 2013, Gross signed a TR1 form in which he took on responsibility for inspecting “Firestop, Draftstop, and Fire-block systems,” “Energy Code Compliance,” “Fire-Resistance Rated Construction,” and for conducting a final inspection. Pl. Ex. 30. The final TR1 submitted after construction was complete, however, indicated that Gross was no longer responsible for “Energy Code Compliance.” Pl. Ex. 64.\n\nBetween October 9, 2012 and January 8, 2013, the plans for Wax’s store on Austin Street went through several iterations. On November 26, 2012, European Wax Center’s corporate office approved a plan dated November 21, 2012. Perlman Decl. 16 at ¶¶ 3-11. However, these plans had to be changed in light of Wax’s acquisition of an additional 26-29 square foot area from the landlord, which was reflected on the December 3, 2012 plans created by GF55. Perlman Decl. ¶ 19, Gross Decl. ¶ 15, Pl. Ex. 10. Perlman sent the December 3 plans to two contractors, JFB and Ridge Construction Corp., to begin the process of obtaining bids to build out the store. Perlman Decl. ¶ 19-20. In an email to JFB owner Joseph Basile, Perl-man explained that they were “preliminary construction documents” that were still under review by John Gulyas at European Wax Center’s corporate office. Perlman Decl. ¶ 23; Pl. Ex. 12. The Corporate office completed its review of the site drawings on December 20, 2012, and issued a certificate of approval to Perlman. Perlman Decl. ¶ 25; PI. Ex. 16. As noted above, Wax entered into a formal lease for the space with Sawyen on December 14, 2014. Perlman Decl. ¶ 26.\n\nGF55 provided Wax with another updated set of plans on December 28, 2012, PI. Ex. 28, and yet another set of plans on January 8, 2013, Def. Ex. 16. The January 8, 2013 set was submitted to the New York Department of Buildings for approval. Gross Decl. ¶ 15. Both the December 28, 2012 and January 8, 2013 set of plans continued to indicate that the size of Wax’s finished store would be 1264 square feet. Plaintiffs Exhibit 144, which is a photo-, graph of the Department of Buildings-approved plans left at the construction site by Perlman, demonstrates that it was the January 8, 2013 set that was approved by the City. PI. Ex. 144; Perlman Decl. ¶ 35.\n\nWax entered into a written contract with JFB for demolition and construction at the Austin Street site on January 10, 2013. Perlman Decl. ¶ 30; PL Ex. 19. Although the City did not approve the site plans until January 28, 2013, JFB created an initial construction schedule and began work by January 23, 2013. Perlman Decl. ¶ 33. Perlman delivered the approved plans to the site on the day that the City approved them, January 28, 2012. Perl-man Deck ¶ 35.\n\nAt an uncertain time during construction in January 2013, but in no event later than January 28, 2013, an issue arose between European Wax’s corporate office, JFB, and GF55 over the relocation of the store’s demising wall. In order to relocate the demising wall to a distance of 14 feet, 7 inches from the far end of Wax’s store, as called for by GF55’s January 8, 2013 plans, it became apparent that the wall would have to move into the doorway of the adjacent store. Gross Decl. ¶ 15. An email from John Gulyas at European Wax Center’s corporate office to Gross on January 28, 2013 accused Gross of creating the error by measuring the space incorrectly. Perlman Decl. ¶34; PL Ex. 35. GF55 responded that the problem was not with the measurements, but rather that JFB built the wall in the wrong place. Gross Decl. ¶ 20; PL Ex. 35. Gross testified at trial that it was his understanding that it would be acceptable to draw plans that would require moving the front door of the adjacent space. Tr. 90:7-18. While that set explains that the demising wall will be moved and marks the width of the store at that wall as 14 feet, seven inches, the drawing also depicts the far end of the demising wall as flush against the joint of the adjacent store’s doorway. Def. Ex. 16. Gross explained that the drawing was not intended to accurately depict the adjacent site, but rather was meant to show only Wax’s space, as any necessary work on the adjacent space would be the landlord’s responsibility to complete. Tr. 93:22-94:10.\n\nBecause Wax did not want to move the adjacent doorway, and after some initial proposed solutions were rejected, the parties eventually agreed to fix the problem by leaving approximately 12 feet, 6 inches of the existing demising wall in place (measuring from the front of the store to the back). Gross Decl. ¶21. GF55 prepared a revised plan showing this fix on January 31, 2013. See PL Ex. 27. Because the demising wall was not being moved as intended, this compromise solution ceded some amount of square footage back to the adjacent store. Pl. Ex. 27. The initial version of the revised drawing indicated that Wax’s store now measured 1156 square feet — a difference of 108 square feet from the previous plan. PI. Ex. 27; Perlman Decl. ¶ 42. As Gross explained in an email to Perlman, and as internal GF55 emails show, this substantial difference was the result in GF55 inadvertently labeling the drawing with net instead of gross square footage, meaning unlike all previous measurements, this number did not take into account the thickness of any of the exterior or demising walls. PI. Exs. 40 & 41. GF55 actually measured the lost space as ten square feet. Perlman Decl. ¶ 43; Gross Decl. ¶ 21; Def. Ex. 12. Perlman called Sawyen to try to obtain a reduction in Wax’s rent based on the lost square footage, but the landlord did not respond. Perlman Decl. 45.\n\nSwayne Shu of Sawyen, testifying by deposition read into the record at trial, said that at some point Perlman contacted to him to try to remeasure the space and determine the “correct” number. Tr. 198:1-4. Shu then said that he “d[id]n’t care” what number Perlman gave him, and that he (Shu) believed he had the correct number. Tr. 198:6-7. The number, he said, was a “take it or leave it” offer to Wax. Tr. 198:11. He also explained that he did not consider the square footage of the store to be a negotiable item, and that he would not negotiate over the square footage in any attempt to renew the lease. Tr. 202:10-16.\n\nIt is undisputed between Wax and GF55 that JFB’s construction of the Austin Street store was deficient in a number of ways. Unless otherwise noted, the parties remaining in this action agree that the following items deviated either from New York City’s Building Code, or from GF55’s final plans, or both.\n\nThe New York City Department of Buildings requires the use of a material known as “black iron” in the construction of ceiling support systems. Gavosto Decl. ¶ 25. Although GF55’s plans called for the installation of black iron, JFB instead used steel wire to hang the ceiling. Gross Decl. ¶ 33; Perlman Decl. 72; Genovese Decl. ¶ 22. The lack of black iron in Wax’s store is a deviation from New York City’s building code and must be remedied. Gross Decl. ¶ 34.\n\nJFB did not fireproof the steel beams in the store, or install “firestopping” as was required by GF55’s plans and City code. Gavosto Decl. 35-40. Gavosto reported the lack of firestopping to the City after he discovered it. Gavosto Decl. ¶ 35.\n\nThe parties stipulated that the low-voltage wiring installed above the ceiling was not up to code, and that rewiring is necessary to bring Wax’s store into compliance. Pl.’s Proposed Findings ¶ 36; Gavosto Decl. ¶ 37 (explaining wiring did not comply with code).\n\nGF55’s plans, as drawn, required partition walls between rooms in Wax’s store to be built the metal deck above the ceiling. Gavosto Decl. ¶ 45. JFB built the partition walls only up to a few inches above the ceiling level, rather than to the metal deck. Gavosto Decl. ¶ 45. The space at the top of the partition walls allows noise to travel more easily throughout the location. Gavosto Decl. ¶ 45; Perlman Decl. ¶ 81.\n\nGF55 designed the store to have a 48-inch area clear in front of the door in order comply with “ANSI” requirements. Pl. Ex. 148; Tr. 145:1-25. Gross explained at trial that “ANSI” is a “safe harbor code” laying forth requirements for handicapped accessibility. Tr. 145:24-25. Genovese testified in his declaration that relocation of a brick feature at the front of the store is required to make the construction conform to the plans. Genovese Decl. ¶21.\n\nGF55 does not dispute that JFB built the brick feature differently than was called for in the plans. Wax attempts to cast the placement of the brick feature as a code issue, based on GF55’s drawing labeling the 48-inch space as compliant with ANSI. as identified by GF55 in its drawing, is also part of New York City Building Code. to ensure compliance with code, Tr. 146:7, and that the store as built complies with legal requirement for egress, Tr. 147:18-19.\n\nWax and GF55 stipulated that JFB did not install tile in the store’s bathroom at the correct height. PL’s Proposed Findings ¶ 47; Genovese Decl. ¶ 40.\n\nThe portion of the demising wall between Wax’s store and the adjacent space was constructed incorrectly by JFB. Genovese ¶ 19. The wall finishes into glass installed at the front of the store, and only one side of the wall was finished with sheetrock. Genovese ¶ 19. This left the other side of the wall exposed and visible through the glass, allowing views of the framing, insulation, metal studs, and back of the sheetrock. Genovese ¶ 19. The wall would have to be rebuilt in order to be finished properly so that the wall’s innards are not exposed. Genovese ¶ 19.\n\nThough the agreement between Wax and JFB called for the use of “sound batt insulation with wool,” JFB used fiberglass insulation between the rooms in the store. Perlman Decl. ¶¶ 49-50. Sound batt insulation was required as a matter of contract between Wax and JFB. Perlman Decl. ¶ 49.\n\nWax submitted a declaration containing expert testimony from Philip Charles Gavosto, an architect familiar with commercial and retail projects in the New York City area. Gavosto Decl. ¶ 3. GF55 also cross-examined Gavosto at trial. Gavosto stated expert opinions about both the standard of professional care with which an architect must measure a retail space, and an architect’s duty to inspect.\n\nGavosto explained, based on files maintained by the New York City Department of Buildings, that GF55 was authorized to certify the plans for construction of Wax’s store under Directive 14. Gavosto Decl. ¶¶ 5, 7-8. Gavosto described a form identified as a “TR1 Technical Report Statement of Responsibility” (“TR1”), which identified the inspections that GF55 was required to perform to certify the project under Directive 14, and which Gross signed on January 17, 2013. Gavosto Decl. ¶¶ 8-9. Gavosto opined that, based on his review of the plans prepared by GF55 partners on December 28, 2012 and January 8, 2013, and his inspection of the site, Gross’s certification in the final TR1 form (PI. Ex. 64) that the work performed substantially conformed to the approved construction document and complied with all relevant code provisions, rules, and regulations was “false.” Gavosto Decl. ¶¶ 5, 12. Gavosto found that the work neither substantially conformed to the documents, nor complied with the relevant code provisions and regulations. Gavosto Decl. ¶ 12.\n\nAccording to Gavosto, the “accepted custom, standard and practice is for an architect on a directive 14 project to inspect the work as it is ongoing” to ensure compliance with “the approved plans, and the building code, rules and regulations of the City of New York.” Gavosto Decl. ¶28. He further pointed to the TR1 form itself, which he said requires “progress inspections during the course of the work in order to certify at project completion that the project conforms to the plans, rules, codes and regulations.” Gavosto Decl. ¶ 28.\n\nTurning to the discrete deficiencies at the Austin Street store, Gavosto stated that any “reasonably prudent architect exercising a reasonable degree of care would have instantly recognized the lack of black iron if an inspection were made during construction as it should have been.” Gavosto Decl. ¶ 29. Basing his opinion on photos taken during construction and provided to him by Perlman, Gavosto declared that it was so “glaring and apparent” that black iron was missing that either Gross must not have performed the inspections, or his performance fell substantially below the appropriate standard of care. Gavosto Decl. ¶¶ 29-30. Furthermore, even if Gross had missed the lack of black iron during progress inspections, Gavosto explained that Gross should have caught it in his final inspection, as it would have involved nothing more than moving aside a ceiling tile. Gavosto Decl. ¶ 32.\n\nGavosto’s testimony also touched on the lack of firestopping. Again beginning from a direct reading of the TR1, Gavosto explained that the form required Gross to conduct such an inspection because Gross had checked “yes” next to the relevant box on the form. Gavosto Decl. ¶ 36. Gavosto’s declaration echoes his conclusion re-' garding black iron by stating that the lack of firestopping was “glaring and obvious,” and that it would have been recognized if an inspection were performed with a reasonable degree of care. Gavosto Decl. ¶ 36.\n\nIn addition to his review of the construction plans and independent inspection of the store, Gavosto also took his own measurement of the area of the store to compare with GF55’s. Gavosto testified that he measured the “actual gross square footage” of the spaced leased by Wax as 1232 square feet. Gavosto Decl. ¶42. He defined “gross square footage” to mean a measurement from the midpoint of the demising walls on each side of the store, and to the exterior of the front glass and the exterior of the rear block wall. Gavosto Decl. ¶ 42. He arrived at his measurement using Tek-4 Ryobi laser distance measure, and calculated the results using AutoCad 2007 software. Gavosto Decl. ¶ 42. According to Gavosto, his measurement also includes a 18.4 square-foot area near the front of the store, where the entry door is set back from the rest of the front store glass, and he claims Gross’s measurement did not include this area. Gavosto Decl. ¶ 42. Thus, although in absolute terms the difference between Gross’s measure and Gavosto’s measurement is 32 square feet, Gavosto identifies the actual difference in their measurements as 45.4 square feet, because the additional 13.4 square feet were measured in an area that Gross did not include as part of the store. Gavosto Decl. ¶ 42.\n\nGavosto’s stated that when measuring field conditions in order to draw the layout of a store, the accepted professional standard of care requires an architect to be accurate “within tenths of a foot.” Gavosto Decl. ¶ 44. Compared to this standard, he states that Gross’s measurement of 1264 square feet is “so far off that it cannot be described as anything other than a significant deviation from the generally accepted standard of care.... ” Gavosto Decl. ¶ 44.\n\nGF55 presented declaration testimony from Anthony DiProperzio, a registered architect in the state of New York and then-President of the Long Island chapter of the American Institute of Architects. Wax cross-examined DiProperzio at trial. DiProperzio presented expert opinion regarding GF55’s measurement of the Austin Street site and GF55’s duty to inspect.\n\nWith regard to GF55’s measurements, DiProperzio testified that he endeavored to make an independent evaluation of the area of the store, based on his own measurements and the original drawings used by GF55 to determine the thickness of the exterior and demising walls. DiProperzio Decl. ¶ 7. DiProperzio’s measurement came to 1291.2 gross square feet, with an interior floor area of 1131.2 square feet. DiProperzio Decl. ¶ 32. He testified that GF55’s measurement was consistent with the governing standard of care for an architect even though it was less than his own measurement, and that deviations in measurements between architects are common, especially when there are “dead” space and irregular angles in an occupied space. DiProperzio Decl. ¶¶ 9-10. He further testified that “a degree of variations is expected from one individual to the next” when measuring square footage. DiProperzio Decl. ¶ 10.\n\nAs for the installation of black iron, DiProperzio testified that black iron is a New York City code requirement. DiProperzio Decl. ¶ 11. He then explained that GF55’s approved set of plans contained a notation that “specifically forbids” the use of steel wire and indicates that the contractor must use black iron. DiProperzio Decl. ¶ 12. DiProperzio stated that it is “unequivocal that a contractor is obligated to build form the approved set of plans,” not just as a matter of custom and practice, but also as a matter of “good sense and prudence.” DiProperzio Decl. ¶ 13.\n\nShortly before trial was scheduled to begin, JFB Construction’s counsel moved to withdraw, citing nonpayment of fees and JFB’s expressed intent not to defend itself any further. See Dkt. Nos. 104 & 105. The Court granted counsel’s motion, and informed JFB that, as an artificial entity, it must be represented by counsel or face default. Dkt. No. 108. No counsel noticed an appearance for JFB by the deadline set by the Court, nor has any attempt to notice such an appearance been made since. On the first day of trial (October 20, 2014), the Court entered an order to show cause why default judgment should not be entered against JFB, Dkt. No. 114, to which there has been no response.\n\nAlthough Plaintiff has pleaded a single cause of action for architectural malpractice against GF55, its theories of liability, each of which carries separate damages, require the Court to decide whether two distinct actions (or omissions) by Defendant constitute architectural malpractice: GF55’s alleged mismeasurement of the area of Wax’s store, and GF55’s alleged failure to inspect the construction for compliance with New York City regulations and conformance with GF55’s own plans.\n\nGF55 contests the existence of a duty and proximate cause, but concedes that, were the inspections Wax complains of actually required, Gross did not carry them out with the requisite measure of professional care. On cross-examination, Gross stated, “I was there once or twice during demolition, and 1 went to final, and obviously I didn’t— didn’t take the ceiling tiles down, I didn’t inspect the ceiling and I didn’t inspect the firestopping properly. I missed it, okay? ... I missed it. I didn’t see it.” Tr. 111:3-8. When asked if he should have checked to see if the rooms were safe, Gross similarly responded that he “didn’t do a good job on [sic] this area.” Tr. 113:16.\n\nGF55’s argument here is twofold: first, that its plans called for the use of black iron, and thus any failure to use black iron was JFB’s fault; and second, that even if it had properly conducted the inspections, it would have been JFB’s responsibility to remedy them, so Wax cannot seek damages from GF55."
  },
  "outcome": {
   "amount": 54247,
   "amountIsTheRequestedAmount": false,
   "date": "2015-06-09",
   "description": "After a two-day bench trial the court rejected Wax's lost-square-footage (rent overpayment) theory against GF55, finding no duty to measure for lease purposes and no proven deviation from the standard of care, but held GF55 liable for negligent TR1 inspections and awarded the remediation cost: $35,070 for black iron, $8,000 for fireproofing plus $10,000 protection and cleanup, and $1,177 for firestopping, a total of $54,247. The court separately entered a default judgment of $163,723 against the contractor JFB.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "none",
   "finalAmount": 54247,
   "finalNote": "No appeal reflected in the source. Amount verified ($54,247 against GF55 only); the $163,723 default judgment against JFB is excluded because the case valued is the contested claim against the architect. The remediation cost figures appear only in the damages findings, so the input has no dollar figure for the inspection claim; the calculator may decline or price only the rent theory."
  },
  "expectedRole": "Owner / Developer",
  "offers": [],
  "category": "construction-defect",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "howard-town-center-v-howard-university-2017",
  "source": {
   "caseName": "Howard Town Center Developer, LLC v. Howard University",
   "court": "U.S. District Court for the District of Columbia (Chief Judge Beryl A. Howell; findings of fact and conclusions of law after an eight-day bench trial)",
   "docket": "Civil Action No. 13-1075 (BAH)",
   "decided": "2017-08-14",
   "url": "https://storage.courtlistener.com/pdf/2017/08/14/howard_town_center_developer_llc_v._howard_university.pdf",
   "excerptNote": "Verbatim from the opening paragraph (parties, property, posture; the closing 'For the reasons set forth below' sentence removed), Part I.A (both sides' pleaded claims and relief, including the University's counterclaim demand), Part I.B (TRO denial, the D.C. Circuit's vacatur and remand, the remand summary-judgment rulings left for trial), and selected Findings of Fact 1-4, 7-10, 24, 26, 36, 39-40, 46-47, 49, 51, 54, 56-57, 61, 63, 90, 94, 98, 110, 114-115, 117-119, 123 and 126 (ground lease and rent schedule, default/remedy clauses, Development Agreement timetable, escrow, deadline extensions, the four default notices, Term Sheet, final May 30, 2013 deadline, termination, the Closeline deposit, and the Developer's expert damages figures). Removed: the court's conclusion sentences, this Court's December 2013 summary-judgment grant and forfeiture ruling (only the appellate vacatur is kept), the court's characterizations of the Developer's conduct (e.g., 'feigned surprise', 'bluff called', 'bullying tactics'), the credibility assessment, the writ-of-attachment/evasion findings, all of Part III (Conclusions of Law) and Part IV, footnotes and markers, record-citation-only sentences, and page numbers. The University's counterclaim demand equals the award, so amountIsTheRequestedAmount is true (Skyway precedent)."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the ground landlord, Howard University, on its breach-of-contract counterclaim against its ground-lease developer, Howard Town Center Developer, LLC (and the original lessee CastleRock Partners), for an unpaid ground-rent installment and enforcement of its termination of a 99-year ground lease for a planned mixed-use project in Washington, D.C.; the developer sues for breach and a declaration that the termination is void, and the case is set for a federal bench trial.",
   "documentText": "The plaintiff Howard Town Center Developer, LLC, (the “Developer”) instituted this lawsuit against the defendant, Howard University (the “University”), over four years ago, on July 15, 2013. The parties’ dispute, over which this Court possesses diversity jurisdiction, centers on a parcel of land (the “Property”) located in the Shaw neighborhood of Washington, D.C., that was leased by the University to the Developer in January 2010, based on the Developer’s contractual obligation to construct improvements at a cost of over $140,000,000. Instead, the Property has remained dormant for nearly eight years. Pending before the Court are the Developer’s claim that the University breached its contract with the Developer and the University’s claims that the Developer and the third-party defendant, CastleRock Partners, LLC, are in breach of contract. During an eight-day-long bench trial, the Court heard evidence on the parties’ claims and counterclaims.\n\nThe Developer’s operative complaint in this action, Pl.’s Amended Complaint, asserts two counts, amounting to a single claim for relief. Count I claims breach of contract because the Developer “has performed its duties and responsibilities under the agreements,” while the University “has breached the terms of the Ground Lease and the Development Agreement by issuing an improper notice of termination and purporting to terminate the Ground Lease” and “has breached the terms of the Term Sheet by refusing to negotiate in good faith over the Second Amendments to the Ground Lease and Development Agreement.” In Count II, the Developer seeks declaratory relief, declaring that the Developer “was not and is not in default under the Ground Lease and the Development Agreement,” “that no Event of Default occurred,” “that [the University’s] purported termination . . . of June 17, 2013, is null and void,” “that delays that result from the historic designation process constitutes an Unavoidable Delay under the Lease,” and “that the construction deadlines contemplated by the parties will be shifted by at least the amount of time these proceedings are pending.” The Developer seeks relief in the form of specific performance of the Term Sheet and “damages, including the lost value of the Lease during the period during which [the University’s] actions interfered with [the Developer’s] rights,” or, alternatively, “damages for the period of the 99-year Ground Lease remaining at the time of breach”; declaratory relief; payment of “all of [the Developer’s] costs and expenses, including attorney’s fees”; and pre- and post-judgment interest.\n\nThe University’s operative counterclaim and third-party complaint in this action alleges one claim of breach of contract each against Howard Town Center Developer, LLC, and the third-party defendant, CastleRock Partners, LLC. As support, the University asserts that the Developer “breached the Ground Lease by failing to pay rent as and when due” and requests judgment in its favor “in the amount of $1,475,000, together with additional interest, attorneys’ fees and costs recoverable under the applicable contracts.”\n\nUpon instituting this action on July 15, 2013, the Developer filed a motion for a temporary restraining order, which motion was denied. On appeal, the D.C. Circuit vacated the grant of summary judgment to the University, concluding “[t]here is a genuine dispute whether the Developer was required to pay the University $1,475,000 by May 30, 2013, and, therefore, whether the University was entitled to terminate the Ground Lease and to collect $1,475,000 in damages,” and remanded for the Court to determine “whether the Term Sheet is a legally enforceable contract under D.C. law and, if so, how the Term Sheet affects both the Developer’s claim . . . and the University’s counterclaim.” The Circuit declined to address three other arguments raised by the Developer: (1) whether “it was impossible to make the $1,475,000 rental payment in accordance with the terms of the Ground Lease because the parties had terminated the escrow account designated to receive the payment”; (2) whether “the Developer cured the alleged breach by depositing $1,475,000 into an escrow account on June 19, 2013”; and (3) whether “the district court erred by allowing the University to terminate the lease in addition to requiring the Developer to pay rent.”\n\nOn remand, the parties filed cross-motions for summary judgment, which motions were denied. Concluding the Term Sheet was a binding preliminary agreement, requiring the parties to fulfill the terms contained in the Term Sheet and negotiate toward the amendments to the Ground Lease and Development Agreement in good faith, the motions nevertheless were denied because the parties’ good faith in negotiating presented questions of fact as to which there was a genuine dispute. The Developer’s argument that payment of the $1,475,000 was impossible was also addressed and rejected as a matter of law. Finally, while dropping its contention that the deposit of funds with its own third-party agent cured any default, the Developer argued on remand that the University’s notices to the defendant were insufficient, relying upon the D.C. Circuit’s observation that “the Ground Lease provides the University must send two notices to the Developer before it may terminate the lease.” Noting that “the Developer received multiple notices of default over the course of the parties’ business relationship,” the merits of the Developer’s arguments regarding notice were left to be resolved following trial.\n\n1. The plaintiff, Howard Town Center Developer, LLC, is a limited liability corporation (“LLC”) created for the purpose of developing the Property. Cohen testified that, as an LLC, Howard Town Center Developer, LLC, is a “standalone entity,” capitalized only for the purpose of the Howard Town Center project through funding provided by Cohen, his son, Alan Cohen, and his son-in-law, Eric Siegel. Siegel testified that Howard Town Center Developer, LLC, “has no money in its bank account as of today” and, consequently, in the “narrow” sense that the LLC is unable to pay any judgment rendered against it, the instant litigation is “risk free” for the Developer.\n\n2. The defendant, Howard University, is a private university located in the District of Columbia, “authorized by a charter of the thirty-ninth Congress of the United States in 1867.” 3. The third-party defendant, CastleRock Partners, LLC, is also an LLC in the business of developing real estate, and is headed by Timothy Kissler.\n\n4. The Property. In December 2008, CastleRock and the University agreed that the University would lease to CastleRock a parcel of land, located at 2112 and 2146 Georgia Avenue NW, which CastleRock would develop for mixed residential and commercial use. The University had acquired the parcel of land from the District of Columbia in an agreement dated February 19, 2008. Two buildings were already located on the site: the WRECO (“Washington Railway and Electric Company”) garage, which was “the first purpose built bus garage for the city’s transit system,” constructed in 1930, and the Bond Bread building, a large industrial bakery building, constructed in 1929.\n\n7. On January 22, 2010, the University and CastleRock executed a Ground Lease Agreement and a second Development Agreement. Effective that same day, the University, CastleRock, and the Developer executed an agreement assigning CastleRock’s rights and obligations under the Ground Lease and Development Agreement to the Developer.\n\n8. Pertinent Terms of the Ground Lease. The Ground Lease provided for a lease term of ninety-nine years, see Ground Lease at 5, as well as a right of first offer to purchase the Property in the event of its sale, see id. at 68, in exchange for which rent was to be paid to the University according to a specified schedule. The rent payment schedule required the Developer to pay: i. $525,000 on January 22, 2010, “which amount shall be deemed earned and is non-refundable notwithstanding any future termination of this Lease for any reason whatsoever,” id. at 5; ii. $1,475,000 upon “the earlier to occur of (i) the date on which [the Developer] shall make settlement upon a construction loan for the funding of the costs of constructing the Mandatory Project Improvements (as defined in the Development Agreement) to the extent such costs are not funded from [the Developer’s] own resources or other equity sources, or (ii) March 15, 2011,” id. at 2, 5; and iii. monthly installments of rent thereafter, beginning no later than December 31, 2014, the latest possible “Rent Commencement Date,” at a monthly rate of $95,016.25, subject to (1) a percentage reduction during any period prior to the Rent Commencement Date in which, pursuant to the Ground Lease, rent is due, if less than 100% of the improvements are occupied by tenants and (2) increases after the fifth year following the Rent Commencement Date based on the Consumer Price Index, id. at 6. In sum, at the outset of the parties’ relationship, the Developer agreed to pay rent to the University of $525,000 on January 22, 2010; $1,475,000 by March 15, 2011; and monthly installments of about $95,016.25 no later than December 31, 2014. Over the last seven years, the Developer made only the first payment.\n\nThe Ground Lease provided that, in the event that the Developer should “at any time be in default with respect to any rental payments or other charges . . . and should such default continue for a period of ten (10) days after written notice from [the University] to [the Developer]; or should [the Developer] be in default in the prompt and full performance of any other of its promises, covenants or agreements” in the Ground Lease or the Development Agreement, subject to defined cure period and notice requirements, including “written notice, . . . specifying in BOLD FACE CONSPICUOUS TYPE, that [the University] intends to terminate” the Ground Lease if the default is not cured, the University shall have the option to terminate the agreements or reenter the Property. The Ground Lease further provided that the University could recover from the Developer in damages, inter alia, “the worth at the time of award of any unpaid rent . . . that had been earned and is outstanding at the time of such termination” and “the reasonable amount of any costs or expenses incurred by [the University] in enforcing its rights under this [Ground] Lease after such default.”\n\n9. Pertinent Terms of the Development Agreement. The 2010 Development Agreement “set forth [the parties’] agreements and understandings concerning the planning, development and construction of the Project Improvements.” The 2010 Development Agreement further dictated the timetable for the development of the Property, specifying as follows: i. the Developer shall commence construction as provided in the Declaration of Covenants, i.e., by December 17, 2010, and achieve completion by December 17, 2011, or, failing either, shall “pay to the University, upon demand, all penalties, damages and demands that the University may become obligated to pay to the District of Columbia,” except that the University authorizes the Developer to communicate with the District regarding extension of those two dates, as long as the Developer “keep[s] the University fully informed” of its discussions with the District, the University “ha[s] the right to participate directly” in those discussions, and the Developer has no “right to commit the University as to any matter,” and the University “shall not object” to any extension “consistent with the schedule for performance of Developer’s obligations,” id. at 17–18; ii. if construction is not commenced by March 15, 2011, the University may “give written notice specifying IN BOLD FACE CONSPICUOUS TYPE” that the Development Agreement and Ground Lease will be terminated if construction does not begin within thirty days of receipt of notice, id. at 17; and iii. “the Developer shall achieve Substantial Completion of all of the Mandatory Project Improvements no later than March 15, 2013 . . . , subject to extensions for additional periods of time equal to time actually lost on account of Unavoidable Delays,” id. at 18, which category includes delays due to, inter alia, “unanticipated, unusual and extreme weather” and “other unanticipated events or circumstances beyond the affected Party’s control,” id. at 7. Significantly for the parties’ future relationship, the Unavoidable Delays provisions expressly excluded delays due to “changes in market conditions” affecting costs, “governmental delays” unless not attributable to the Developer’s actions, or “unavailability to Developer of any debt or equity financing to provide construction or permanent funding for the Project.”\n\n10. First Amendments. The same day as the execution of the Ground Lease and Development Agreement, the parties executed amendments to both agreements, effective January 22, 2010, addressing various matters, including environmental remediation of the site. The Developer’s consultant had “determined in 2009 [the remediation cost] to be approximately $4 million,” and the University agreed through the Development Agreement Amendment to shift a substantial portion of those costs from the Developer to itself. Specifically, the amendments provided that: a) the University would, at its own cost, hire a consultant to prepare a remediation report and plan, in coordination with the Developer, and “endeavor to cause the Consultant to complete a draft [remediation plan] by approximately mid-March, 2010,” Development Amendment Agreement at 2; b) the Developer would be responsible for implementation of the remediation plan, see id. at 2–3; c) the Developer would be responsible for remediation costs up to $750,000, and the University would cover the costs in excess of that amount, see id. at 4–6; and d) as a means of facilitating the Developer’s reimbursement by the University for the environmental remediation expenses in excess of $750,000, “the University and the Developer shall establish an escrow account . . . with an escrow agent . . . reasonably acceptable to the University and Developer,” into which the Developer would deposit the first two rental payments “when due and payable under the Lease.” The account was to bear interest, which interest would “be added to” and “included as a part of” the funds in the account. The funds in the escrow account would be disbursed by the escrow agent, upon receipt of specified documentation, to cover incurred remediation costs. The parties entered into an escrow agreement, effective January 25, 2010, to form the required escrow account.\n\n24. A month later, on March 31, 2011, Stovall represented that the University had undertaken “a considered review of the entire history of the Developer’s interaction with the University since the Project’s inception” and was “prepared to approve the revised schedule for the Project” provided by the Developer on February 28, 2011, which included a scheduled construction commencement date of December 8, 2011.\n\n26. Notably, Stovall also highlighted the fact that the Developer “failed to pay the $1,475,000 rental payment that became due under the Ground Lease on March 15, 2011,” and explained that the University did “not concur” with the Developer’s position that the failure was justified. Nevertheless, having agreed to push back the date for commencement of construction, the University also agreed to “postpone the due date for that payment until December 8, 2011,” as requested by the Developer. Having rejected a two-phase project, however, the University did not grant the Developer’s request that “only half of the next ground lease payment” be paid at that time.\n\n36. Finally, Stovall’s letter demanded that the Developer provide assurances to the University by September 8, 2011, including, inter alia, (1) “unqualified ratification of [the Developer’s] obligations under the existing Project Documents and an unqualified statement that the Developer is ready, willing and able to timely comply with and perform” those obligations; (2) “[r]easonable evidence” of the Developer’s ability to obtain tenants, financing, and permits consistent with its obligations; and (3) “written affirmation of [the Developer’s] intent and ability . . . to timely pay to the University the rent payment in the amount of $1,475,000.00 due on December 8, 2011” and comply with the other milestone dates set out in the Developer’s February 28, 2011, memorandum and approved by the University on March 31, 2011.\n\n39. On September 26, 2011, the University sent the Developer a notice that the Developer “is in default under the Project Documents” for its failure to comply with the requirements of those documents in the time provided. The University also stated that “the Developer is in anticipatory breach of the Project Documents,” noting that “the Developer has evidenced repeatedly its inability and/or unwillingness to proceed with the construction and completion of the Project according to the program” set out in the governing agreements, most recently by failing to provide the assurances requested in the letter dated August 30, 2011. In a letter dated September 29, 2011, the Developer responded to the September 26, 2011, Notice of Default, explaining its “great difficulty in securing conventional financing for the entire project” after losing the HUD financing and noting the “shortfall” of $1,500,000 “in financing this $145,000,000 project.”\n\n46. The Developer failed to make the $1,475,000 second rental payment on December 8, 2011. Cohen testified that while the Developer “had the money to do whatever was necessary to get this project off the ground, including funding whatever equities was required, and any other obligations financially that it took to get this project up and running,” after “collective decision input from the attorney, from [his] son, from [his] son-in-law, Eric Siegel, and [him]self,” he decided not to make payment as required by the extended deadline proposed by the Developer and accepted by the University in March 2011.\n\n47. On December 28, 2011, Tarola transmitted to Cohen, via email, a “letter agreement that Howard University propose[d] [the parties] jointly execute to move the Town Center project forward.” The Developer executed this agreement, “with some minor changes,” on January 4, 2012.\n\n49. The Second Notice of Default. Notwithstanding the University’s commitment to negotiate toward a modified agreement with the Developer regarding the Howard Town Center project, on February 3, 2012, the University sent the Developer, for the second time, a notice of the Developer’s defaults, and in the same document gave the first notice of the University’s intent to terminate the agreements with the Developer. The notice further cites the Developer’s failure to pay $1,475,000 by December 8, 2011, as agreed by the parties in the letters between Stovall and the Developer, and warns that “if that failure is not cured . . . within ten (10) days after this notice, then such failure shall also constitute an event of default” for which, pursuant to the Ground Lease, the Developer would have one “further cure period [of] ten (10) days” before becoming subject to termination for that default.\n\n51. Cohen testified that after receiving this notice, he consulted with Siegel and Michael Hollander, the Cohen Companies’ General Counsel, and considered the past interactions and present positon of the parties, including “what [Cohen] considered at some point some[] posturing on Howard’s part,” and notwithstanding the reference in the default notice to the Developer’s failure to make the second rental payment, “the decision was just not to make the payment.” Siegel testified that “it’s always been a surprise to [him] that the University had been pushing so hard for a rental payment that they could never use because it was always going to . . . make a clean site,” i.e., to cover environmental remediation costs in excess of $750,000, pursuant to the Development Agreement Amendment, and, thus, “the money would never be used by the University for their own purposes.”\n\n54. The Third Notice of Default. On March 5, 2012, the University sent the third notice of default, and the second notice of intent to terminate, to the Developer. This notice further provided that the Developer’s failure to pay $1,475,000 “ha[d] not been cured within the required cure period . . . and now constitutes an Event of Default,” id. at 2, and consequently that “the University intends to terminate the Ground Lease, the Development Agreement and the other project documents if this event of default is not cured within ten (10) days.”\n\n56. On April 10, 2012, after nearly six months of negotiations and two letter agreements aimed at resolving their dispute, the parties executed a three-page “Term Sheet” designated as “For Settlement purposes.”\n\n57. Provisions of the Term Sheet. In twelve simple paragraphs, the Term Sheet withdrew the University’s second and third notices of default, sent in February and March 2012, conditioned on “[t]he timetable for cure of the monetary default . . . defined herein.” Under this “timetable” for “RENT, SCHEDULE, AND OTHER ITEMS,” the following steps were expressly required: a) execution of the Term Sheet itself; b) execution of an amendment to the escrow agreement such that the $525,000 paid by the Developer thus far to the parties’ escrow account would be released to the University upon execution of the Term Sheet; c) execution of amendments to the Ground Lease and the Development Agreement by April 30, 2012; d) commencement of construction by April 15, 2013, with phasing of the project permitted; e) automatic termination of the lease if the “Developer fails to break ground by September 15, 2013,” at which point “both parties agree that all actions, by either party, prior to the execution of the Ground Lease Amendment shall not be grounds for litigation,” i.e., a walk away provision; and f) “[p]ayment of past due ground rent in the amount of $1,475,000,” with $100,000 to be paid “no later than ten (10) days after execution of th[e] Term Sheet” and “the balance of $1,375,000” to be paid “no later than ninety (90) days after the execution” of the amendments to the Ground Lease and the Development Agreement, id. at 2.\n\n61. Siegel testified that “between the 10th and approximately the 19th of April,” i.e., “[a]fter the signing of the term sheet[,] we learned from J.P. Morgan that they were no longer interested in moving forward with the project.”\n\n63. The Developer did not make the $100,000 payment as required by the Term Sheet. Cohen testified that, at some point, after “assessing where [the Developer] w[as] financially in this project, [he] immediately called [Jenkins]” and told him he was “just not in a position to pay this money” because the Developer was “almost $2 million out-of-pocket.” Jenkins “was upset,” and Cohen “fully underst[oo]d” given that he “went back on a promise” to the University.\n\n90. The University’s February 1, 2013, Email. On February 1, 2013, Kurt Schmoke emailed Siegel, copying, inter alia, Dr. Ribeau, noting that University “officials . . . met to assess our current position with respect to this development” in light of the University’s “concerns about the lack of progress being made” and advised that the “University will take no further action in support of the current developer” unless the Developer “has obtained sufficient financing from a reliable source,” the $1,475,000 rental payment “has been made to Howard University by May 30, 2013,” and “architectural drawings sufficient to obtain construction permits . . . are developed by [the Developer] and approved by Howard University.”\n\n94. The Historic Preservation Nominations Email. On February 7, 2013, Brangman forwarded to Siegel an email from Rebecca Miller, Executive Director of the DC Preservation League (“DCPL”). In her email, Miller notified Brangman that DCPL had nominated the Bond Bread building and WRECO garage for historic status, which nominations are considered by the DC Historic Preservation Review Board. Miller shared that she “understand[s] that Howard University has plans to raze these buildings” and “would like to propose a meeting to discuss [its] plans and to determine if there is a way to retain these buildings while still carrying out the goals of the University’s project.” In response to Brangman’s email, Siegel replied, “Someone must call me to discuss how we jointly address this immediately or this project will come to a screeching halt.”\n\n98. The parties exchanged further drafts of the amendment documents, without coming to final agreement on all terms of all documents. The University declined to accept the Developer’s persistent demand to condition payment on securing financing. In its draft dated February 21, 2013, the Developer finally dropped its proposed language making payment contingent on financing and agreed to a May 30, 2013, deadline for the $1,475,000 rental payment to “coincide with [the] closing date” for financing.\n\nConsistent with its “non-negotiable” position expressed in March and April 2012, two days before the May 30, 2013, deadline for payment of the overdue rent, the Developer transmitted a letter to Brangman communicating that “until the[] historic issues are resolved,” it did “not intend to make any further monetary payments to Howard University.” The Developer also warned that “[s]hould Howard University determine that it is not advisable to continue working with the Developer,” the Developer would nevertheless “hold firm to this property.” The Developer further stated that it was “too invested to walk away” from the project.\n\nThe Fourth Notice of Default. On June 3, 2013, having received no rental payment from the Developer on May 30, 2013, the University sent the Developer a fourth notice regarding its defaults. The reason cited for the notice was “that the Developer is in default of the Ground Lease by reason of its failure to pay to the University the sum of $1,475,000.00 due December 8, 2011, . . . which due date was extended by the University through May 30, 2013.” As required by the Ground Lease, in bold face and all-capitalized type, the letter provided, “PLEASE BE ADVISED THAT THE UNIVERSITY INTENDS TO TERMINATE THE GROUND LEASE IF THAT FAILURE IS NOT CURED BY THE PAYMENT IN FULL OF THE SUM OF $1,475,000.00 BY THE DEVELOPER TO THE UNIVERSITY WITHIN TEN (10) DAYS AFTER THIS NOTICE.”\n\nThe Developer responded to this notice the following day by requesting a meeting and again proposing conditions on the rental payment, including return to the Developer should it decide, within six months, to “walk away” from the property. The Developer’s proposed conditioned payment of the second rental payment was again rejected by the University.\n\nIn an email dated June 6, 2013, Tarola informed Siegel that the University “would be happy to talk after Howard receives the ground rent payment to cure the default. Please advise when that will occur.” Rather than make the payment, the Developer sent Schmoke, on June 10, 2013, a letter detailing the Developer’s progress so far on the Property and offering to place the payment funds into an escrow account “so that Howard University knows that the money is there to be paid upon conclusion of the Mayor’s Agent process.” By this date, the Developer still had no firm commitment for financing.\n\nThe Notice of Termination. On June 14, 2013, the University sent the Developer a notice of election to terminate the ground lease and, three days later, the University terminated the development agreement.\n\nAs of June 19, 2013, the Developer expressed awareness that the University “has determined not to change its position regarding termination,” Joint Ex. 68, Emails Between Eric Siegel, Kurt Schmoke, and Alan Brangman, dated June 19, 2013, at 1, but, nevertheless, on June 21, 2013, wrote a check payable to Closeline Settlements in the amount of $1,475,000, deposited in an interest bearing account for the benefit of the Developer.\n\nIn a letter to the University dated June 27, 2013, the Developer withdrew its signed proposed second amendment documents and asserted that it would “keep the $1,475,000 tendered” in the Closeline account.\n\nThrough an expert witness, the Developer presented testimony that, assuming the Developer’s legal entitlement to damages for the alleged breach of contract, the values applicable to calculation of the Developer’s damages would be $14,400,000 for the leasehold, $4,100,000 for the cost of delay as of June 1, 2017, and $6,200,000 for the lost tax abatement."
  },
  "outcome": {
   "amount": 1475000,
   "amountIsTheRequestedAmount": true,
   "date": "2017-08-14",
   "description": "After an eight-day bench trial the court entered judgment for the University on its counterclaim and third-party complaint and against the Developer on its claim: the University's termination of the Ground Lease and Development Agreement was effective and a permissible forfeiture of all of the Developer's rights, and the University was awarded damages of $1,475,000 (the unpaid second rent installment, exactly its counterclaim demand), with interest and fees in an amount to be determined on a later submission. The Developer's claimed damages (leasehold $14.4M, delay $4.1M, lost tax abatement $6.2M) were not awarded. No appeal is reflected in the opinion.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "none",
   "finalAmount": 1475000,
   "finalNote": "No appeal reflected in the opinion text (subsequent history not otherwise checked). Interest and contractual fees were left to a later submission and are not stated, so attorneysFeesAtTrial is null; the non-monetary forfeiture of the Developer's ground-lease rights is not valued in the amount."
  },
  "expectedRole": "Landlord",
  "offers": [
   {
    "by": "defendant",
    "amount": 1475000,
    "kind": "demand (counterclaim)",
    "quote": "requests judgment in its favor “in the amount of $1,475,000, together with additional interest, attorneys’ fees and costs recoverable under the applicable contracts.”"
   }
  ],
  "category": "lease-disputes",
  "holdout": true,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "westdale-northwest-v-united-states-2021",
  "source": {
   "caseName": "Westdale Northwest Center, LP v. United States",
   "court": "U.S. Court of Federal Claims (Judge Richard A. Hertling; three-day bench trial); later EAJA opinion of May 25, 2022 states the final judgment",
   "docket": "No. 16-113C",
   "decided": "2021-07-09",
   "url": "https://storage.courtlistener.com/pdf/2021/07/09/westdale_northwest_center_lp_v._united_states_1.pdf",
   "excerptNote": "source.decided is the trial opinion date (2021-07-09); the outcome date is the May 25, 2022 EAJA opinion that states the final judgment. Verbatim from the trial opinion's introduction (dispute and each side's position; the 'Based on the testimony' holding paragraph removed) and Part I Facts A-I (2004 lease, 2009 SFO and Forms 1364/1217, original lease terms and tax-adjustment clauses, tax history, the former lessor's and GSA's testimony on the tax base, Westdale's purchase and assumption, GSA's audit and withholding, Lease Amendments 17-18, yearly invoices/payments, certified claims, footnotes 11 and 13 on Westdale's alternative reformation claim, footnote 14 pre-trial rulings, procedural history), plus the EAJA opinion's statement of each side's post-trial position and the plaintiff's $567,376.80 demand. Removed: every sentence stating the 2012 first-year tax figure that the court adopted as the reformed base (it is the holding), the 2012 split-payment amounts that would let it be back-computed, the court's credibility finding and 'therefore fully integrated' conclusion, footnotes 1-10 and 12, Parts II-IV (jurisdiction, discussion, conclusion), the EAJA opinion's account of the merits ruling, judgment, costs and fee award, the unpaid-taxes table, and page numbers."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the lessor, Westdale Northwest Center, LP, which bought a San Antonio office building subject to a GSA lease and sues the United States in the Court of Federal Claims for real-estate tax adjustments and rent GSA withheld under the lease's tax-base clause; the government defends on mutual mistake and seeks reformation of the clause, and the case is set for a bench trial.",
   "documentText": "The parties in this contract dispute seek review of a property-tax provision in a lease for office space. The plaintiff, Westdale Northwest Center, LP (“Westdale”), leases office space at an office building it owns in San Antonio, Texas, to the defendant, the United States, acting through the General Services Administration (“GSA”). The subject lease was negotiated and signed by GSA and a previous owner of the building, Griffin Partners, Inc. (“Griffin Partners”), from which Westdale subsequently acquired the building.\n\nSeveral years into the lease, following a GSA audit, a disagreement arose regarding the proper interpretation of a lease clause related to annual real-estate taxes. The original contracting parties established a fixed tax base for the building. This tax base was incorporated into a formula to be reflected in the lease to ensure that for each annual payment of the owner’s real-estate taxes GSA would only pay taxes proportional to the share of the building it occupied. The formula was intended to adjust GSA’s payment to the lessor depending on whether the building’s real-estate taxes that year exceeded or fell below the established tax base. The parties to this litigation agree that the tax base written into the lease—$133,045—does not accomplish the parties’ goal.\n\nThe parties disagree as to the implications of the incorrect figure. Westdale petitions this Court to enforce the contract as written because the plain language of the tax-adjustment clause is unambiguous. The defendant asserts the defense of mutual mistake in contract formation, arguing that the former lessor and GSA were incorrect in their belief that the tax-adjustment clause as written would accomplish the goal of ensuring that GSA pays only its proportional share of the building’s real-estate taxes each year. The defendant seeks reformation of the contract to accomplish the original intent of the parties. The Court held a three-day trial from January 25 to January 27, 2021, to take testimony regarding the understanding and intent of the former lessor and GSA at the time of contract formation.\n\nThe property at issue is an office building known as Northwest Center, located at 7550 IH 10 West in San Antonio, Texas (“building” or “property”). (Jt. Stip. ¶ 3.) On June 3, 2004, GSA agreed to a lease (“2004 lease”) with SAOP Northwest Center, L.P. (“SAOP”) to secure office space. (Id.; JX 39.) At that time, SAOP owned the Northwest Center. (Tr. 128 (Moreland).) SAOP was a single-asset entity of Griffin Partners, a commercial real-estate investment and management company.\n\nThe space leased by GSA under the 2004 Lease served as offices for the Administrative Office of the United States Courts in San Antonio.\n\nGSA issued a Solicitation for Offers (“SFO”) as part of its acquisition of office space. The 2004 lease incorporated all terms and conditions of GSA’s SFO. (JX 39 at 2.) Section 3.4 of the SFO was titled “Tax Adjustment (Sep 2000).” (Id. at 14.) Paragraph B of section 3.4 initially provided as part of the printed form: “Base year taxes as referred to in this paragraph are 1) the real estate taxes for the first 12-month period coincident with full assessment or 2) may be an amount negotiated by the parties that reflects an agreed upon base for a fully assessed value of the property.”\n\nThe printed phrase “coincident with full assessment or” was struck out of paragraph B by hand and initialed by two representatives. (Id.) That phrase was replaced by new text typed above paragraph B. (Id.) As amended, paragraph B provided: “Base year taxes as referred to in this paragraph are 1) the real estate taxes for the 12-month period 1998, which were $413,020.00 or $1.71 per rentable square foot 2) may be an amount negotiated by the parties that reflects an agreed upon base for a fully assessed value of the property.” (Id. (emphasis added).) Thus, the lessor and GSA selected a prior tax year to serve as the real-estate tax base and deviated from the original text of the SFO. The $413,020 in real-estate taxes assessed against the property in 1998 was lower than the $525,153.66 in taxes assessed against the property in 2004, the year the parties agreed to the lease.\n\nDue to the pending expiration of the 2004 lease, GSA issued SFO 8TX3135 on August 19, 2009, seeking office space “for Federal Public Defender and Administrative Office of the United States Courts in San Antonio, Texas.” (JX 1B at 1.) The SFO identified a ten-year lease term with “five (5) years firm term.” (Id. at 5.) The SFO permitted GSA to terminate the lease in whole or in part with written notice after the fifth year. (Id.) The SFO required offerors to submit offers by December 31, 2009, (id.), though the deadline was extended to January 15, 2010, (JX 1D).\n\nSAOP submitted an offer in response to the SFO on January 15, 2010. Pursuant to paragraph 3.0 of the 2009 SFO, SAOP submitted its bid package to Ms. Kelly Winn, a broker with Studley, Inc. and the authorized real-estate broker for GSA, and Ms. Daphne Hadley, the GSA contracting officer for the lease.\n\nParagraph 3.4 of the SFO required each offeror to submit to the contracting officer, as part of its offer, seven different forms. (JX 1B at 15-16.) These forms included GSA Form 1364 (“Proposal to Lease Space”) and GSA Form 1217 (“Lessor’s Annual Cost Statement”).\n\nAs part of SAOP’s offer, it submitted GSA Form 1364. The SFO specified that both pages of GSA Form 1364 had to be completed and specifically noted that offerors should indicate the total lease rate per square foot, “clearly itemizing . . . the total building shell rental.” (JX 1B at 15.) The SFO further noted that “[t]his building shell rental rate shall include, but not limited to [sic], property financing (exclusive of Tenant Improvements), insurance, taxes, management, profit, etc., for the building.”\n\nOn SAOP’s submitted Form 1364, it described the property as a 25-year-old building of 241,404 rentable square feet (“rsf”). (DX 2 at 1.) Line 16 of Form 1364 was titled “SHELL RENT (including current real estate taxes. Refer to Line 28 on GSA Form 1217).” (Id.) SAOP identified the shell rent on line 16 as $14.32, the amortized cost per rentable square foot. (Id.) On line 27 of the form, SAOP identified the “current year taxes” as “2009” and wrote “$691,942.” (Id. at 2.) SAOP checked a box indicating that the 2009 taxes were “based on the fully assessed value.”\n\nSAOP also submitted GSA Form 1217 (“Lessor’s Annual Cost Statement”) with its offer, as required by the SFO. Form 1217 was divided into two main sections. Section I, comprised of Lines 5 through 27, referred to the “Estimated Annual Cost of Services & Utilities Furnished by Lessor as Part of Rental Consideration.” (DX 1 at 1-2.) Section II, which included lines 28 through 33, referred to the “Estimated Annual Cost of Ownership Exclusive of Capital Charges.” (Id. at 2.) For each section, column (a) represented costs for the entire building, and column (b) represented costs pertaining to the area leased by GSA. (Id. at 1.) At the time SAOP submitted Form 1217, its bid proposed that GSA lease an area of 43,119 rsf. (Id.) Line 28 of Form 1217 was titled “REAL ESTATE TAXES.” (Id. at 2.) On line 28, in column (a), SAOP listed the lessor’s annual cost for real estate taxes as $726,629. On line 28(b), which referred specifically to the area leased by the government, SAOP identified the real-estate taxes as $129,788.19.\n\nGSA awarded the 2010 lease (“original lease”) to SAOP. (Jt. Stip. ¶ 6.) On October 19, 2010, SAOP and GSA agreed to U.S. Government Lease for Real Property No. GS-07B-16737. (Id.) The lease between the parties was a standard government form lease that was prepared by GSA. (JX 1B at 13.) SAOP drafted no part of the lease.\n\nUnder the original lease, GSA occupied 44,201 rsf of office and related space in the building. (Jt. Stip. ¶ 6.) For months 1 through 60 of the lease term, the annual rent was $1,087,786.61, at the rate of $90,648.88 per month. (Id. ¶ 7.) For months 61 through 120, the annual rent was $1,060,824.00, at the rate of $88,402.00 per month. (Id.) At the outset of the original lease, GSA occupied 18.309894 percent of the building. (Id. ¶ 8.) The original lease permitted GSA to “terminate this lease in whole or in part at any time on or after the fifth (5 th) year by giving at least 120 days’ notice in writing to the Lessor.”\n\nBetween execution of the original lease in 2010 and July 2013, GSA and SAOP executed 12 supplemental lease agreements amending the lease.\n\nThe original lease contained provisions intended to determine the amount of property tax GSA would pay relative to its occupancy in the building. Paragraph 15 of the original lease provided in full: In accordance with the SFO Paragraph 4.2 entitled “Tax Adjustment,” this lease is subject to real estate tax adjustment. The base amount is established as $133,045.00. The percentage of occupancy is 18.309894%. Paragraph 15 is the “tax-adjustment clause” primarily at issue in this dispute.\n\nThe SFO, which was incorporated into and referenced in paragraph 15 of the original lease, provided definitions and specific instructions for calculating the tax base. Paragraph 4.2 of the SFO identified the paragraph’s purpose: This paragraph provides for adjustment in the rent (“Tax Adjustment”) to account for increases or decreases in Real Estate Taxes for the Property after the establishment of the Real Estate Tax Base, as those terms are defined herein. Tax Adjustments shall be calculated in accordance with this Clause.\n\nClause 7 of paragraph 4.2, defining “Real Estate Tax Base,” identified the methodology for selecting a real-estate tax base: 7. “Real Estate Tax Base” is the Unadjusted Real Estate Taxes for the first full Tax Year following the commencement of the Lease term. If the Real Estate Taxes for that Tax Year are not based upon a Full Assessment of the Property, then the Real Estate Tax Base shall be the Unadjusted Real Estate Taxes for the Property for the first full Tax Year for which the Real Estate Taxes are based upon a Full Assessment. Such first full Tax Year may be hereinafter referred to as the “Tax Base Year.” Alternatively, the Real Estate Tax Base may be an amount negotiated by the parties that reflects an agreed upon base for a Fully Assessed value of the property.\n\nClause 7 thus established that the real-estate tax base would be the unadjusted real-estate taxes assessed for the first year following commencement of the lease or, alternatively, would be based on an amount the parties negotiated.\n\nParagraph 4.2C(1) further specified the methodology for calculating GSA’s proportionate tax payment: The amount of the Tax Adjustment shall be determined by multiplying the Government’s Percentage of Occupancy by the difference between the current year Unadjusted Real Estate Taxes and the Real Estate Tax Base, less the portion of such difference not paid due to a Tax Abatement (except if a Tax Abatement comes into effect after the date of award of the Lease). If a Tax Abatement comes into effect after the date of award of the Lease, the amount of the Tax Adjustment shall be determined by multiplying the Government’s Percentage of Occupancy by the difference between the current year Unadjusted Real Estate Taxes and the Real Estate Tax Base. Paragraph 4.2 was a “standard section” in GSA leases.\n\nThe overall effect of the real-estate tax provisions was to (1) establish a default and alternative method for selecting the tax base; (2) ensure GSA pays only its share of the building’s real-estate taxes based on the percentage of the building it occupies; and (3) identify the appropriate formula to effectuate the tax adjustment.\n\nThe Northwest Center is in Bexar County, Texas, which assesses the real-estate taxes on the building. (Tr. 49 (Allen); JX 79.) Property taxes for a given tax year are payable by January 31 of the following year. (Tr. 32 (Allen).) For the 2009 tax year, the year immediately preceding negotiation of the original lease, SAOP was assessed $691,942 in unadjusted real-estate taxes. For the 2010 tax year, SAOP ultimately paid Bexar County a total of $573,292.86 in real-estate taxes. (JX 66 at 4; JX 67.) For the 2011 tax year, SAOP paid a total of $527,585.91 in real-estate taxes.\n\nGriffin Partners, the asset- and property-management company that owned SAOP, authorized Mr. Lee Moreland, its senior vice president for asset management, to “sign and negotiate on behalf of Griffin Partners/SAOP Northwest Center, LP” the original lease. (JX 33.) Mr. Moreland was “the point person in terms of negotiations on behalf of the building owner” and negotiated with GSA the terms of original lease.\n\nMr. Moreland submitted Forms 1364 and 1217, as required by the SFO, on behalf of SAOP in January 2010. (Id. at 176, 180.) His employees prepared the forms under his supervision, and he approved them. (Id. at 181.) Mr. Moreland’s initials appear on each page of SAOP’s bid package, including GSA Forms 1364 and 1217, as required, and he signed the last page of both forms.\n\nMr. Moreland described GSA Form 1217 as “an estimate that was requested of the annual costs of the building.” (Tr. 184.) He testified that line 28(a) on Form 1217, which listed the figure $726,629, constituted the “estimated real estate tax expense for the building.” (Id. at 185.) Regarding the origin of the $726,629 figure on line 28(a) of Form 1217, Mr. Moreland testified that it came from one of two places: “It would either have been . . . the budget . . . the year in which [Form 1217] was submitted, which was in January of 2010, or it was based on the year end, December 31, 2009.”\n\nMr. Moreland explained that his “assumption for the reason” he listed the estimated figure of $726,629 in line 28(a) of Form 1217 “was that it was to establish the estimated [expenses] for the building as part of the offer.” (Id.) Mr. Moreland testified that he did not intend for the estimated costs listed on Form 1217 to be reflected in the lease, stating that it “would not have been my intent with the submission of this package.” He stated that his only intent with the submission of Form 1217 was to “provide the then current estimate of operating expenses for the building,” for the purpose of “completing the SFO as requested by the GSA.” The $726,629 figure of Form 1217 “represents an estimate of what [he] thought that the county would send [SAOP] as a tax bill,” though “subject to the protest procedures for assessed values.”\n\nMr. Moreland neither agreed to nor negotiated a $726,629 or $133,045 tax base during his discussions with GSA leading to the original lease. (Id. at 138, 205.) He testified that the $133,045 figure in paragraph 15 was wrong. (Id. at 189.) He agreed that the figure “was a mistake,” noting that “the $133,045 was not in keeping with my assumption for setting the base year.” (Id. at 199.) Ultimately, when asked whether he would “have recommended to SAOP that it adopt a $726,629 . . . real estate tax base for the new lease,” Mr. Moreland testified “no.”\n\nInstead, he intended “to have the tax base be the actual taxes for the year in which the lease commenced.” (Id. at 139.) He testified that he maintained his intention to use the first-year taxes as the tax base throughout the course of negotiations with GSA. (Id.) Given that the lease term began in January 2012, Mr. Moreland testified that he would have intended to use the actual taxes paid in tax year 2012, subject to any subsequent reduction by Bexar County, as the tax base for paragraph 15 of the lease.\n\nMs. Kelly Winn, a real-estate broker for Studley, Inc., served as GSA’s representative and broker for the procurement that led to the original lease. (Tr. 415 (Winn).) Ms. Winn had extensive experience with public-sector leases. (Id. at 408.) She testified as to the government’s intent in formulating the tax-adjustment clause.\n\nMs. Winn explained that in public-sector leasing, the lessor and the government negotiate using the government’s form. (Id. at 410.) As set forth in paragraph 3.4 of the SFO, offerors were required to submit GSA Forms 1217 and 1364 with their offer in response to the SFO. (Id. at 422-23.) Ms. Winn explained that the “building shell rental rate” referenced in paragraph 3.4(A)(2)(c) of the SFO is comprised of two components. “One is outlined in Section 1.11 of the solicitation for offers, it’s the physical components of the space. And then the second component is a monetary component that is taken from another form, 1217, which includes real estate taxes . . . .” (Id. at 423.) Ms. Winn confirmed that Forms 1217 and 1364 “are not attached to the lease. These documents make up the business terms for the lease.” (Id. at 426.) Forms 1217 and 1364 are “the base for the business points of the lease that’s negotiated.”\n\nMs. Winn explained that line 28 of GSA Form 1217 depicted the lessor’s annual operating costs for real-estate taxes. She noted that column (a), which showed a figure of $726,629, represented “the real estate taxes for the entire building,” and that column (b), listing the figure $129,788.19, referred to “the proportionate share of the real estate taxes for the government.” (Id. at 429.) She further explained that “the real estate taxes would have matched up with a real estate tax statement from Bexar County. So . . . it would be either an estimate based on what they had received from the county or it would be the actual just depending on when it was submitted.” (Id.) In this case, Ms. Winn identified the figures at line 28 as the estimated costs.\n\nGSA maintains that it already pays real-estate taxes as part of its shell rent. (Id. at 423.) Ms. Winn explained that the shell rental rate “does include the real estate taxes for the building.” (Id.) The formula referenced in paragraph 15 of the lease is intended to adjust the proportional amount GSA pays when taxes assessed against the building are either more or less than the established tax base. (Id. at 434.) Ms. Winn explained that essentially, “the tax base is a reference point pursuant to which the taxes are adjusted.” (Id.) The tax-adjustment provision seeks to modify what GSA has already paid in its shell rent, and GSA’s annual tax payment “could go up, [or] could go down” beyond what had already been paid in the shell rent depending on whether the yearly assessment by the county falls above or below the established tax base.\n\nRegarding the establishment of a real-estate tax base, Ms. Winn testified that, for all GSA leases, there generally are “two ways that the real estate base could be determined. It can be determined based on after the first year of occupancy, when the government has taken possession of the space, or it can be a determined amount based on -- if I’m a tenant in the building, what the current real estate taxes are.” (Id. at 435.) For the tax base at issue in this case, she explained: “In this lease, it was a determined amount because we were currently a tenant in the building. So there was a basis for understanding what the real estate taxes were.”\n\nMs. Winn identified the $726,629 figure from line 28 of GSA Form 1217 as the correct determined amount for the building. When asked whether $133,045 was the tax base as determined and used in paragraph 4.2, she testified “no . . . it should be the real estate taxes for the entire building, $726,629.” She did not know how the $133,045 figure ended up in paragraph 15 of the lease. (Id. at 442.) She testified, as did Mr. Moreland, that the $133,045 number “is a mistake.”\n\nMs. Harter, the GSA contracting officer, testified at trial that the proper formula for calculating GSA’s proportional share of property taxes is to “take the tax assessment for that year, subtract the tax or the base that’s already in our shell rent, and then you take that figure and multiply it by our percentage occupancy, and that is . . . the government’s obligation.” She also explained that the tax base of paragraph 15 was incorrect: “it should have been, instead of the $133,045, in paragraph 15, it should have been the $726,629, because that is the base tax amount for the premises, for the entire building.”\n\nBecause the real-estate tax base in paragraph 15 of the lease was written as $133,045 and the taxes assessed exceeded $133,045, SAOP determined that it required additional payment from GSA. Ms. Harter approved payment of SAOP’s bill for a further contribution by GSA to cover the building’s 2012 property tax. She testified that SAOP submitted to GSA with its payment request a worksheet, tax statement, and proof of payment that GSA used to complete an independent tax escalation analysis worksheet. (Tr. at 340.) Ms. Harter relied on this worksheet to approve payment of SAOP’s tax bill and testified that she did not consult the lease to approve the request.\n\nWestdale purchased the Northwest Center from SAOP in 2013. Prior to closing on the purchase, on March 24, 2013, Ms. Harter sent Westdale a letter on behalf of GSA pertaining to the lease. The letter confirmed that “1. Lease GS-07B-16737 is currently in full force and effect. 2. No rental has been paid in advance under the leases. 3. No notices of default have been issued by the Contracting Officer.”\n\nIn addition to the letter from GSA, SAOP provided to Westdale, at the time of closing on May 21, 2013, a partial seller-estoppel certificate related to its lease of space to GSA. The estoppel certificate also confirmed that “Tenant is currently obligated to pay fixed or base rent under the Lease in the annual amount of $1,046,237.67” in monthly installments. It established that there were “no concession, bonuses, free months’ rental, rebates or other matters affecting the rental for Tenant which Tenant has not received” and that “[t]o the best of Seller’s knowledge, there are no events or conditions existing which, with or without notice or the lapse of time, or both, could constitute a monetary or other default of the landlord or tenant under the Lease . . . .”\n\nMr. Allen, Westdale’s executive vice president, negotiated the purchase of Northwest Center and completed the due diligence. (Tr. at 35 (Allen).) He testified that he relied on GSA’s representation that its lease was in full force and effect. He maintained that the government’s estoppel certificate is “critical” because the new lessor had not “had any relationship with the tenants” prior to purchase. He received similar representations from the seller, Griffin Partners.\n\nBecause the contracting parties to the original lease, SAOP and GSA, were unaware of the alleged mistake in paragraph 15, Westdale did not know prior to the purchase that there was any mistake written into the terms of the lease. The amount of GSA’s rental payments aligned with the market rate for office space in San Antonio.\n\nMr. Allen explained that Westdale’s intention in buying the Northwest Center related to potential rental income from tenants in the building. In buying an office building, Mr. Allen testified, the buyer is “buying an income stream. . . . [B]asically how our industry values the building is based on the income stream that you anticipate receiving over typically a three to five-year period, or longer in our case.” (Tr. 36 (Allen).) He explained that GSA’s occupancy “represented 20 percent of the building. There’s no way we were buying the building that didn’t include this rental stream. No way, no how.”\n\nMr. Allen testified that the government’s reading of the lease as intending other than a $133,045 tax base “reduces the rental rate [Westdale] otherwise anticipated receiving.” (Id. at 77.) The withholding of rent payments by GSA to account for the mistake in the tax base reflected in the original lease creates “a reduction in the cash flow that we anticipated. You know, we bought a number of leases in place, the GSA lease was one of many leases that we bought at this property, and we have not received the income that we projected based on the clear reading of the lease that we anticipated to receive.” Therefore, Mr. Allen maintained that Westdale is not receiving the benefit of its bargain under the lease that it assumed with the government “based on [Westdale’s] clear reading of the lease document.”\n\nOn May 21, 2013, by a special warranty deed executed by SAOP, Westdale took title to the real property and improvements. After closing on the property, Westdale, SAOP, and GSA entered into Lease Agreement No. 13, effective July 16, 2013. (JX 14; Jt. Stip. ¶ 13.) This agreement memorialized Westdale’s assumption of all obligations and liabilities of SAOP under the original lease, as amended, and Westdale became the lessor for the remainder of the term of the original lease: Westdale Northwest Center, LP, Lessor, hereby assumes all the incomplete obligations of Lease GS-07B-16737 as amended, and agrees to perform same in accordance with the terms, conditions, and provisions thereof from and after July 16, 2013.\n\nOn July 5, 2014, Westdale sent GSA a letter pertaining to taxes owed for tax year 2013. Westdale notified GSA that it owed $86,446.84, representing GSA’s pro rata share in excess of the established real-estate tax base of the 2013 real-estate taxes assessed against the building. In response to Westdale’s letter, Ms. Harter’s supervisor at GSA, Mr. Ed Perez, approved payment of the 2013 real-estate taxes as determined by the tax-adjustment clause of the lease. GSA paid the sum of $86,446.34, a difference of $.50 from Westdale’s request that the parties do not dispute.\n\nOn November 4, 2014, GSA provided notice to Westdale by letter that GSA had conducted an audit of the lease and the rental payments it had made. (JX 58.) GSA’s “review of the lease and rental payments revealed that [Westdale had] been overpaid in the amount of $79,027.78.” (Id. at 1.) The letter notified Westdale that the overpayment would be deducted from shell rent payments for two months until repaid in full.\n\nGSA’s audit pertained to tax-adjustment payments due under the lease for 2012 and from January 1 to May 20, 2013.\n\nGSA’s November 4, 2014 letter was the first indication Westdale received that GSA believed it had overpaid property taxes under the lease, including when the Northwest Center had been under SAOP’s ownership. On November 5, 2014, Westdale responded via letter to GSA’s claims and contended that GSA had been correctly invoiced according to the tax adjustment provision in the lease. (JX 59.) Westdale explained that “according to Paragraph 15 of the lease, the base amount is $133,045.00 with a percentage of occupancy of 18.309894% . . . . Based on the attached invoices, it is the Landlord’s opinion that it has correctly invoiced the Government per the terms of the lease.”\n\nBy letter dated November 7, 2014, GSA notified Westdale that its audit also concluded that Westdale had been overpaid in the amount of $13,630.21 for property taxes due from May 21 to December 31, 2013.\n\nOn January 16, 2015, GSA issued a letter to Griffin Partners, the former asset management company, demanding the return of $79,027.78, asserting an erroneous overpayment made under the terms of the original lease. GSA deducted this amount from payments of rent and other charges due to Westdale.\n\nOn February 16, 2015, Westdale and GSA executed Lease Amendment No. 17, effective retroactively from December 18, 2014, documenting GSA’s acceptance of 3,417 additional rsf of recently constructed expansion space. (Jt. Stip. ¶ 20; JX 18 at 1.) The new space increased the space GSA occupied to 47,618 rsf or 19.725357 percent of the building.\n\nParagraph D of Lease Amendment No. 17 provided that “Paragraph 15 of the Lease is hereby amended as follows. . . . 15. In accordance with the SFO Paragraph 4.2 entitled ‘Tax Adjustment,’ this lease is subject to real estate tax adjustment. The base amount is established as $133,045.00. The percentage of occupancy is 19.725357% [47,618 RSF/241,405 RSF].” Ms. Harter testified that the retention of the figure $133,045 in paragraph D of Lease Amendment No. 17 was another mistake.\n\nOn March 31, 2015, Westdale notified GSA via email that GSA was responsible for paying its pro rata share of the 2014 real-estate taxes assessed against the property above the established base-year amount. Westdale invoiced GSA $105,341.85. On June 27, 2015, GSA notified Westdale that GSA had overpaid its share of 2014 real estate taxes by $27,391.00. In August 2015, GSA withheld $27,391.00 from its rent payment.\n\nOn August 28, 2015, Ms. Harter sent Westdale a letter on behalf of GSA in response to Westdale’s claim, explaining the erroneous tax base: I have conducted a thorough examination of the lease and tax audit documents, along with the Lessor’s Annual Cost Statement which was submitted with the Lessor’s offer for the succeeding lease, and tax records for the building. In doing so, I have determined the lease language itself does not correctly represent the intention of the established real estate tax base as it relates to real estate adjustments. Paragraph 15 of the SF2 and Lease Amendment (LA) No. 17 do state the base amount is established as $133,045.00 which I believe is intended to be the tax base for the Government occupied percentage of the building only, not the entire building.\n\nDue to a subsequent reduction by Bexar County of Westdale’s total property-tax obligations, Westdale received a refund of $56,145.16, reducing the amount Westdale claims is due for 2014 taxes to $95,061.73.\n\nMs. Harter attached Lease Amendment No. 18 to her August 2015 letter “to clarify the intention of the $133,045.00 tax base.” (JX 26 at 5, 11.) Lease Amendment No. 18 sought to replace the tax base of $133,045 written into paragraph 15 of the lease with $726,629. Westdale did not sign Lease Amendment No. 18.\n\nFor the 2015 tax year, Westdale invoiced GSA for $130,672.02, representing GSA’s proportional share of real-estate taxes. (Jt. Stip. ¶ 25; JX 47.) GSA prepared a tax escalation worksheet and determined it owed $23,870.61. (JX 49.) It paid the sum of $23,870.61, leaving $106,801.41 of the amount Westdale had invoiced. (Jt. Stip. ¶ 25.) Westdale later received a reduction in real-estate taxes owed to Bexar County, resulting in a refund to Westdale of $59,647.11 for the 2015 tax year. (Id.) This reduction decreased the total 2015 taxes allegedly owed by GSA from $130,672.02 to $118,906.41 and decreases the amount Westdale alleges to be still due from GSA from $106,801.41 to $95,035.80.\n\nFor the 2016 tax year, Westdale invoiced GSA for $127,913.93. (Id. ¶ 28; JX 51.) Of the total amount invoiced, GSA paid $21,112.52, leaving $106,801.41 as an alleged remaining balance. Westdale received a $30,991.27 refund on its 2016 taxes. This reduction decreased the total 2016 taxes allegedly due from GSA from $127,913.13 to $121,800.78 and decreases the amount Westdale alleges to be still due from GSA from $106,801.41 to $100,688.26.\n\nFor the 2017 tax year, Westdale invoiced GSA for $133,365.35. (JX 54 at 3.) GSA paid $26,563.96 of that total, leaving $106,801.39 that Westdale alleges is still due. (Jt. Stip. ¶ 30; JX 54A; JX 54B.) Westdale again received a refund of its 2017 taxes, decreasing the taxes allegedly due from GSA from $133,365.35 to $127,808.93, and decreasing the amount Westdale now alleges to be still due from GSA from $106,801.41 to $101,244.97.\n\nFor the 2018 tax year, Westdale invoiced GSA for $132,988.83. (Jt. Stip. ¶ 32.) GSA paid $54,861.85, leaving $78,126.78 alleged to be due to Westdale. (Id.) A subsequent reduction by Bexar County to the assessed value of the building resulted in a refund of $21,564.46 of the taxes Westdale paid for the 2018 tax year. (Id.) This reduction decreases the total 2018 taxes allegedly due from GSA from $132,988.83 to $128,735.17 and decreases the amount Westdale alleges to be still due from GSA from $78,126.78 to $73,873.32.\n\nFor the 2019 tax year, Westdale invoiced GSA for $129,990.55. (Jt. Stip. ¶ 34.) GSA paid the sum of $22,581.42 and was due a credit in the amount of $607.74 relating to its expansion space on the ninth floor of the building, leaving the sum of $107,409.13 alleged to be due to Westdale. (Id.) A subsequent reduction by Bexar County to the assessed value of the building resulted in a refund of $27,014.34 of the taxes Westdale paid for the 2019 tax year. (Id.) This reduction decreases the 2019 taxes allegedly due from GSA from $129,990.55 to $124,661.88 and decreases the amount Westdale now alleges to be still due from GSA from $107,409.13 to $101,472.72.\n\nFor the 2020 tax year, Westdale was assessed $788,235.87 in property taxes by Bexar County.\n\nWestdale has presented four claims to Ms. Harter, GSA’s contracting officer, for payment of sums it views as due under the plain text of the lease.\n\nOn July 10, 2015, Westdale presented its first certified claim to Ms. Harter for $197,828.56, representing rent and tax adjustments allegedy due to date. (Id. ¶ 26.) Westdale requested a final decision. (Id.) On October 27, 2015, Ms. Harter issued a final decision denying Westdale’s claim.\n\nOn December 20, 2017, Westdale presented a second certified claim to the contracting officer. (Id. ¶ 31.) Westdale sought declaratory relief related to construction and breach of the lease and equitable adjustment. Westdale requested a final decision. The contracting officer denied Westdale’s second certified claim in a final decision on February 8, 2018.\n\nOn October 22, 2019, Westdale presented its third certified claim for sums it alleges are due under the terms of the lease for tax years 2014 through 2018. (Id. ¶ 35.) The contracting officer issued a final decision on November 14, 2019, denying the third certified claim.\n\nOn November 17, 2020, Westdale presented its fourth certified claim to the contracting officer for sums it views as due for tax year 2019. (Id. ¶ 37.) On November 23, 2020, the contracting officer denied the fourth certified claim in a final decision.\n\nIn its second certified claim presented to the contracting officer, Westdale sought enforcement of the lease as written or, “[i]n the alternative, an equitable adjustment or reformation of paragraph 15 of the Lease to reflect that the real estate tax base for real estate taxes is the actual real estate taxes paid for tax year 2012 on the ‘Property.’”\n\nThe plaintiff filed a five-count complaint on January 27, 2016. (ECF 1.) In Count One, the plaintiff alleged that the defendant had breached the contract by failing to pay all money due under the lease. (Id. at 13.) In Count Two, the plaintiff alleged that the defendant had breached the contract by withholding rent payments. (Id. at 13-14.) In Count Three, the plaintiff alleged that the defendant had breached the contract by withholding payments exceeding those claimed. (Id. at 14.) The plaintiff sought declaratory relief in Count Four. (Id. at 14-15.) In Count Five, the plaintiff requested reformation of the lease, in the alternative, should the Court find that the tax base was a result of mutual mistake or scrivener’s error.\n\nUnder Count V, the plaintiff alleged that if the court were to determine that the tax-adjustment clause “is the result of a mutual mistake or scrivener’s error, [Westdale] seeks an equitable adjustment or reformation of the lease to replace the $133,045.00 amount with the actual tax base as evidence [sic] by the amount of tax assessed for 2012.”\n\nThe defendant filed a motion to dismiss in lieu of an answer on May 4, 2016. (ECF 9.) The defendant’s initial motion to dismiss was denied on January 11, 2017. The parties then attempted alternative dispute resolution, but that proved unfruitful. After the completion of discovery, the defendant moved for summary judgment and the plaintiff cross-moved for partial summary judgment. Those motions were denied on May 1, 2019. In rejecting both parties’ motions, Senior Judge Smith found that “genuine issues of material fact remain regarding the intent of the parties at the time of contracting.” The case was transferred to the undersigned in June 2019. With leave of the Court, the plaintiff thereafter filed an amended four-count complaint. (ECF 70.) Count IV of the plaintiff’s first amended complaint realleged a claim for reformation in the event a mutual mistake was found. (Id. ¶ 53.) The defendant’s answer to the first amended complaint raised mutual mistake as an affirmative defense.\n\nAt the start of the trial, the Court denied the plaintiff’s motion in limine seeking a finding that the lease provisions at issue are unambiguous and the exclusion of any evidence related to mutual mistake or the Anti-Deficiency Act. (ECF 124.) The Court permitted the exclusion of information pertaining to the parties’ efforts at alternative dispute resolution. (Id.) The Court denied the plaintiff’s motion to strike the testimony of Ms. Kelly Winn.\n\nThe Court held a trial in January 2021. The plaintiff argued that the contract unambiguously noted that $133,045 was the real-estate tax base. (Post-Trial Br., ECF 138 at 5.) The plaintiff also argued that the error, to the extent that the tax base was erroneous, was a unilateral mistake by the government for which the government should bear responsibility. Furthermore, as a good-faith purchaser for value, the plaintiff contended that it was entitled to damages for GSA’s breach of contract and that reformation of the contract was inappropriate. The plaintiff also argued that the defendant’s unclean hands and ratification or waiver of the mistake precluded it from withholding the funds due to the plaintiff. The plaintiff sought damages of $567,376.80.\n\nThe defendant argued that the lease was ambiguous regarding the appropriate tax base and that the tax base listed in the original lease was a result of mutual mistake. (Post-Trial Br., ECF 137 at 21-22.) The defendant sought reformation of the contract to implement the figure of $726,629 as the real-estate tax base.\n\nThe plaintiff opposed contract reformation but argued as a “strictly alternative claim” that if the Court were to reform the contract, the amount $726,629 would be inappropriate to use as a tax base."
  },
  "outcome": {
   "amount": 173226.14,
   "amountIsTheRequestedAmount": false,
   "date": "2022-05-25",
   "description": "After a three-day bench trial the court (July 9, 2021) found the lease's $133,045 tax base was a mutual mistake of GSA and the former lessor but, protecting Westdale as a good-faith purchaser, reformed it to $541,020.95 (the 2012 first-year taxes) rather than GSA's $726,629, and had the parties compute damages under the reformed base. On the parties' calculation of damages and interest the Clerk entered final judgment for Westdale of $173,226.14 (inclusive of interest), against its $567,376.80 demand; costs of $5,919.12 were taxed against the government. On May 25, 2022 the court awarded Westdale $76,064.31 in EAJA fees and expenses (it sought $106,058.99), reduced for limited success. Neither party appealed.",
   "attorneysFeesAtTrial": 76064.31,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "none",
   "finalAmount": 173226.14,
   "finalNote": "Neither party appealed. The amount is the final judgment, which includes interest; neither opinion states a principal-only figure. attorneysFeesAtTrial is the trial court's post-judgment EAJA award (fees and research expenses), not a contractual fee award."
  },
  "expectedRole": "Landlord",
  "offers": [
   {
    "by": "plaintiff",
    "amount": 567376.8,
    "kind": "demand",
    "quote": "The plaintiff sought damages of $567,376.80.",
    "source": "2022-05-25 EAJA opinion, pdf/2022/05/25/westdale_northwest_center_lp_v._united_states.pdf"
   },
   {
    "by": "defendant",
    "amount": null,
    "kind": "position",
    "quote": "The defendant sought reformation of the contract to implement the figure of $726,629 as the real-estate tax base.",
    "source": "2022-05-25 EAJA opinion"
   }
  ],
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 },
 {
  "id": "gba-associates-v-united-states-2025",
  "source": {
   "caseName": "GBA Associates Limited Partnership v. United States",
   "court": "U.S. Court of Federal Claims (Judge Kathryn C. Davis; five-day bench trial)",
   "docket": "No. 20-116",
   "decided": "2025-09-19",
   "url": "https://storage.courtlistener.com/pdf/2025/09/19/gba_associates_limited_partnership_v._united_states.pdf",
   "excerptNote": "Verbatim from the introduction (lease, tax-base mechanism, the dispute, the earlier partial summary-judgment ruling, the trial question and each side's position; the 'for the reasons explained below' findings and holding sentences removed) and Background Parts A-E (proposal and tax estimate, lease terms and tax-base/full-assessment definitions, renovation timeline, the late-closed permit, County assessment timing, 2012-2015 assessed values and reasons for change, the 2015 tax bill, the tax-adjustment history, the Altus contact and Forte email, Morrison's investigation, final decision and rent withholding), footnote 24 (plaintiff's abandoned 2012 theory), and the Discussion's neutral statements of each expert's opinion and of Plaintiff's arguments, including its post-trial windfall theory. Removed: the court's findings and inferences (e.g., the inference drawn from the Forte email, the credibility ruling on who assessed in 2015, 'one would expect' effective-age reasoning), the per-parcel tax lines and 2012-2014 tax-bill totals (the checker's running-header filter strips those recurring lines), most valuation detail (length), the entire legal analysis, conclusion and judgment, footnotes other than 24, and page numbers."
  },
  "input": {
   "userSide": "sideA",
   "expectToTrial": true,
   "description": "We represent the lessor, GBA Associates Limited Partnership, which leases a renovated Falls Church, Virginia office campus to GSA and sues the United States in the Court of Federal Claims for breach of the lease after GSA reset the lease's real-estate tax base year and withheld rent to recoup prior tax adjustments; the case is set for a bench trial.",
   "documentText": "This breach-of-contract case arises from the administration of a July 2010 lease (“the Lease”) that the General Services Administration (“GSA”) entered into with GBA Associates Limited Partnership (“Plaintiff”) for an office building occupied by the United States Department of Defense, Defense Health Agency. The property consists of several parcels and associated buildings located at 7700 Arlington Boulevard, Falls Church, Virginia (“the Property”). Pursuant to the Lease, Plaintiff substantially renovated the Property’s facilities. Because the parties expected the renovations to cause a significant increase in the Property’s value, the Lease provided that the “Real Estate Tax Base” would be established in the first full tax year for which taxes were based on a “Full Assessment” of the Property coincident with full occupancy. Under the Lease, the Property was deemed “Fully Assessed” when the local taxing authority—in this case, the County of Fairfax (“Fairfax County” or “the County”)—assessed the Property’s tax liability taking into account the value of all improvements contemplated by the Lease. The Real Estate Tax Base would be used during the life of the Lease to calculate any adjustment for changes in property taxes. That is, after the establishment of the Real Estate Tax Base, if Fairfax County issued a real estate tax bill above that base tax amount, the Lease required GSA to reimburse Plaintiff for its share of any excess tax payment. Conversely, if the County issued a real estate tax bill below that base tax amount, GSA would receive its share of the decrease.\n\nRenovations to the Property were complete by, at the latest, October 2012. In August 2013, after receiving Fairfax County’s 2012 property tax assessment and bill, Vincent Forte, Plaintiff’s president, requested a tax adjustment from GSA premised on the Real Estate Tax Base being established as the 2012 tax year. GSA subsequently executed a supplemental lease agreement establishing the tax base year as 2012, and it issued adjustment payments to Plaintiff for the next six years using that tax base amount. This was true even after the County’s assessed value of the Property increased substantially in 2015, leading to a tax bill that exceeded the 2012 tax base by $867,000 and resulting in a significantly increased adjustment payment from GSA to Plaintiff. Assessments in the following tax years were similarly high.\n\nIn 2019, the new GSA lease contracting officer responsible for managing the lease, Kevin Morrison, concluded that the County’s 2012 tax assessment did not reflect the value of all renovations contemplated by the Lease, and he notified Plaintiff that the tax base should have been set at the tax liability amount reflected in the 2015 tax bill. GSA then reestablished the tax base year as 2015 and withheld rent payments to recoup what it believed it had overpaid. The unilateral correction of the Real Estate Tax Base and the subsequent rent withholding forms the basis of Plaintiff’s allegation that GSA breached the Lease. The Court resolved part of Plaintiff’s claim on summary judgment, holding that GSA unilaterally established the initial Real Estate Tax Base in the course implementing the Lease, that the parties did not bilaterally agree to use 2012 as the tax base year in lieu of following the Lease’s procedures for establishing the tax base, and that GSA was authorized to correct the premature establishment of the tax base. The question that remained for trial was whether GSA correctly reestablished the tax base year as 2015, which raises the factual question of when Fairfax County first issued a tax bill for the Property that reflected the value of all renovations contemplated by the Lease. Plaintiff presented evidence to support its claim that full assessment occurred in tax year 2013 or 2014. The Government presented evidence supporting Mr. Morrison’s conclusion that full assessment occurred in tax year 2015.\n\nThe Court held a five-day trial from December 9, 2024, through December 13, 2024, hearing testimony from six fact witnesses and three experts (one for Plaintiff and two for the Government). The parties completed post-trial briefing on April 1, 2025, and gave closing arguments on April 11, 2025.\n\nIn 2009, GSA began to search for a property to serve as an integrated location for various health system components of the Department of Defense’s Joint Medical Command (the Property later became known as the Defense Health Headquarters of the Defense Health Agency). Plaintiff, through then-Vice President Vincent Forte, responded to GSA’s solicitation with a lease proposal on February 9, 2010. Plaintiff’s property occupies roughly 44 acres just inside the Washington Capital Beltway in Falls Church, Fairfax County, Virginia, and includes an “integrated campus” of three contiguous buildings. In its response to GSA’s Solicitation for Offers, Plaintiff proposed “extensive” building renovations to the three buildings on the Property in order to meet the Government’s specifications. The renovations would be so substantial as to result in completely “gut[ting]” the interiors of the buildings on the Property. After discussions with GSA representatives, see JX 230 at 1127–29, Plaintiff revised its proposal, issuing a best and final lease offer on May 5, 2010.\n\nIn its proposal outlining cost items, Plaintiff included an estimate for real estate taxes. In the final proposal, under the section entitled “Estimated annual cost of ownership exclusive of capital charges,” Plaintiff estimated yearly real estate taxes of $2,348,017, JX 230 at 1348, which equated to $3.50 of real estate tax per square foot, see Gmyr, Tr. at 1232:12–1233:2.\n\nThat number did not change from Plaintiff’s initial proposal, which estimated “[c]urrent year taxes” of $2,348,017. JX 230 at 843. As Vincent Forte acknowledged at trial, real estate taxes for the Property were lower than that amount in 2010 when Plaintiff was preparing its proposal, meaning the amount did not reflect actual current year taxes. Notably, the initial proposal also indicated “yes” in response to the question of whether the inputted tax amounted was “[b]ased on fully assessed value.”\n\nThat representation mattered to GSA. In explaining part of its basis for deeming a competitor’s final offer partially non-compliant, and thus weaker than Plaintiff’s, GSA noted that the competitor had provided a tax estimate that was based on a partially assessed property value, not on the first year of full assessment.\n\nBased on Plaintiff’s final proposal, GSA awarded the Lease to Plaintiff, which the parties fully executed on July 12, 2010. The Lease has a 15-year term, with full occupancy to start no later than September 1, 2012, and an option for GSA to purchase the Property at the end of the lease term. It calls for total rentable office space of 668,285 square feet, renovated and improved as further provided in the Lease, for an annual rent of $24,953,761.90. A “Tenant Improvement Allowance” of $27,099,562.08, funded by GSA, for Plaintiff to use toward renovations was also provided. The Lease required substantial completion of building renovations in four phases, with the last phase ending by June 1, 2012.\n\nThe Lease provides a tax adjustment mechanism for the parties to minimize the impact of increases or decreases above or below what would become, in effect, a default yearly tax amount. Under that mechanism, GSA will “pay its share of any increases” and “receive its share of any decreases in the Real Estate Taxes for the Property” over the term of the Lease. The key input for calculating the adjustment is the “Real Estate Tax Base,” which the Lease defines to be the Unadjusted Real Estate Taxes for the first twelve (12) month period following the commencement of the Lease term. If the Real Estate Taxes for that Year are not based upon a Full Assessment of the Property, then the Real Estate Tax Base shall be the Unadjusted Real Estate Taxes for the Property for the first full Tax Year for which the Real Estate Taxes are based upon a Full Assessment coincident with a full occupancy. Such first full Tax Year may be hereinafter referred to as the “Tax Base Year.”\n\nImportantly, the Lease defines what it means for taxes to be based upon a “Full Assessment”: The Property is deemed to be “Fully Assessed” (and Real Estate Taxes are deemed to be based on a “Full Assessment”) only when a Taxing Authority has, for the purpose of determining the Lessor’s liability for Real Estate Taxes, determined a value for the Property taking into account the value of all improvements contemplated for the Property pursuant to the Lease, and issued to the Lessor a tax bill or other notice of levy wherein the Real Estate Taxes for the full Tax Year are based upon such Full Assessment. At no time prior to the issuance of such a bill or notice shall the Property be deemed Fully Assessed.\n\nAfter the parties executed the Lease in July 2010, Plaintiff began minor construction at the site in November 2010. See Construction Status Report at 75690, JX 132. Full construction activities began in January 2011 following the departure of the previous tenant from the site. By December 5, 2011, construction teams completed renovation work on the building exteriors on the Property—otherwise known as the “warm-lit shell” of each building.\n\nIn the meantime, tenant improvements—generally, improvements to building interiors— began on or after June 2, 2011. Payments continued throughout the end of 2011 and most of 2012, concluding with the final renovation payment in early October 2012. The final certificate of substantial completion for the tenant improvements issued on October 5, 2012. In total, GSA reimbursed Plaintiff about $95 million for the costs of tenant improvements in addition to the Tenant Improvement Allowance of approximately $27 million.\n\nOne permit, however, did not get marked “complete” in the County’s systems until significantly later than the rest. That permit, which was issued on November 8, 2011, concerned a guard booth and canopy that Plaintiff constructed on the Property. The permit remained open and incomplete in Fairfax County’s system until a County supervisory assessor asked an assessor to conduct an inspection of the Property in December 2014. At that point, the Fairfax County assessor—David Pellegrino—went to the Property for an inspection on December 19, 2014, and marked the permit 100% complete in the County’s database.\n\nThe Fairfax County Department of Tax Administration issues yearly property-assessment notices to property owners located within the County. The assessed property value that appears on each assessment forms the basis for calculating the real estate taxes that Fairfax County bills to and collects from each property owner.\n\nThe County’s assessment process typically begins in late August of a calendar year and continues through early December. Tax assessments conducted during those months are for the following calendar year—e.g., assessment activities, like site visits, that occurred in December 2014 would be factored into the 2015 tax year assessment. As a general matter, calendar-year assessments aim to capture a property’s value “as of” January 1 of the tax year.\n\nIn 2012, Mr. Pellegrino assessed the Property at a total value of $99,584,810, see JX 50 at 1424, a 20.0% increase from the year before and about 8.2% higher than the Property’s value in 2007. Parcel A was worth $53,113,520 with the east and west wings valued at $32,794,280 and $20,319,240 respectively. Id. at 1424. The northwest wing—parcel B—was assessed at $38,679,800. Id. at 1424–25. The excess land constituting parcel C was valued at $7,791,490, the same as in the previous two years.\n\nThe notice of real estate assessment change that the County issued in 2012 reflected the updated assessed value for each land parcel. See JX 30 at 1863–65. Mr. Pellegrino provided the following reasons for each parcel’s assessment change: “REASSESSMENT” and “CONSTRUCTION PARTIALLY COMPLETED.”\n\nResponsibility for assessing the Property in the 2013 review year changed. After Mr. Pellegrino’s departure, Jonathan Aikin became the Property’s assessor. Aikin, Tr. at 512:1–12; Pellegrino, Tr. at 425:4–13. Catherine Brincefield became the supervisory assessor responsible for reviewing the Property’s assessment. In 2013, the first review year for which the County could have possibly included the value of all renovations to the Property, the County assessed the Property at a total value of $100,666,270, see 2013 Valuation History Report at 1446, JX 51, a 1.1% increase from the year before and about 9.5% higher than the Property’s value in 2007.\n\nIn 2014, Mr. Aikin assessed the Property at a total value of $96,993,280, see 2014 Valuation History Report at 1468, JX 52, a 3.6% decrease from the year before and about 5.5% higher than the Property’s value in 2007.\n\nWith Ms. Brincefield as the assessor, the Property’s total value nearly doubled from the year prior. In 2015, the total assessed value of the Property was $182,870,960, see 2015 Valuation History Report at 1490, JX 53, an 88.5% increase from the year before and 98.8% higher than the Property’s value in 2007. Importantly, each building’s effective age decreased significantly. The east wing’s effective age decreased from 59 years to 24 years, a 36-year drop (assuming one additional chronological year). In 2015, the County’s estimated economic rent for the east wing was $35 per square foot, up $11.50 from the year prior.\n\nAs a result of Mr. Pellegrino’s tour, the County closed out the final permit and documented for the first time that all construction on the Property was 100% complete.\n\nThose values sum to a total 2015 real estate tax bill of $1,993,293.46, almost $940,000 higher than the year before. In 2015, however, Ms. Brincefield provided the following reason for change for those two parcels: “NEW CONSTRUCTION.”\n\nOn August 22, 2013, Plaintiff—through its now-president, Vincent Forte—requested reimbursement from GSA “for the increase in real estate taxes over the base year.” The request covered the first half of the 2013 tax year and represented that the applicable tax base year was the 12-month period following commencement of the lease on December 5, 2011. On January 28, 2014, GSA issued Supplemental Lease Agreement No. 7A establishing the tax base year as 2012 and the tax base amount as $1,057,010.72, as well as approving a reimbursement of $19,707.63 based on the increase in real estate taxes (above the tax base) in tax year 2013.\n\nFor tax years 2014 through 2018, the parties used the same process to implement tax adjustments for real estate tax increases above the 2012 tax base. See id. at 37145 (Lease Amendment No. 11 memorializing tax adjustment to Plaintiff of $2,805.24 for 2014 tax year), 37147 (Lease Amendment No. 12 memorializing tax adjustment to Plaintiff of $867,039.45 for 2015 tax year), 37149 (Administrative Action No. 2 memorializing tax adjustment to Plaintiff of $1,040,265.64 for 2016 tax year), 37151 (Administrative Action No. 4 memorializing tax adjustment to Plaintiff of $1,019,450.43 for 2017 tax year), 37153 (Administrative Action No. 6 memorializing tax adjustment to Plaintiff of $1,032,805.79 for 2018 tax year).\n\nSpecifically, the Altus Group, a GSA contractor, contacted Vincent Forte to solicit Mr. Forte’s views on the County’s recent tax assessment and to gauge Plaintiff’s interest in pursuing a tax appeal. The contractor ultimately recommended that GSA not pursue an appeal, later indicating to Plaintiff that the contractor’s analysts felt there was “too much exposure based on the actual rent received compared to the rent assumption applied in the county’s Direct Capitalization approach.”\n\nMr. Forte responded, “We had an increased assessment this year of approx $900K (FFX Co finally caught up). Base year is 2012 so increase is passed through.”\n\nFinally, Kevin Morrison, a lease contracting officer for GSA, who assumed management of the Lease from the previous contracting officer in early 2019, took notice of Plaintiff’s sizeable tax adjustment request for the 2018 tax year.\n\nAfter review, Mr. Morrison reached back out to Vincent Forte in early September 2019 to explain his belief that the tax base for the Lease was incorrectly established “as the time period 12/5/2011-12/4/2012.” JX 15 at 37199. Mr. Morrison explained that he believed the property “was not fully assessed until Tax Year 2015.” The next communication Mr. Morrison received was an October 11, 2019, letter from Plaintiff’s counsel, challenging Mr. Morrison’s proposed base-year reestablishment because, counsel argued, GSA had previously acquiesced to the use of the 2012 tax calculation as the base year.\n\nOn October 31, 2019, Mr. Morrison initiated a claim for the overpayment of real estate taxes, issuing a Contracting Officer’s Final Decision finding that the tax base should be the real estate taxes for the Property for tax year 2015. Because the tax base was prematurely set, Mr. Morrison concluded that the Government had overpaid real estate tax adjustments in the amount of $3,413,275.92. Mr. Morrison executed Administrative Action No. 8 to reestablish the tax base at $1,993,293.46, the amount that Fairfax County billed to the Property for real estate taxes in 2015. He further issued Administrative Action No. 9 memorializing GSA’s claim for $3.4 million and its intent to withhold rent in the amount of $142,219.63 per month for a period of 24 months to recoup its overpayment. Two weeks later, Plaintiff filed this lawsuit.\n\nPrior to trial, Plaintiff claimed that the 2012 tax assessment reflected the value of all renovations contemplated by the Lease. It has since abandoned that theory, in large part because the mid-2012 completion of the Property’s interiors could not possibly have been factored into the County’s 2012 assessment, which was finalized in January 2012.\n\nPlaintiff introduced expert testimony that the increase to the Property’s valuation between 2010 and 2012 necessarily reflected assessment of the renovations to the Property that were partially completed during that time. Full assessment, according to the expert, occurred in the tax year following the completion of construction—i.e., 2013. As he noted, in the 2013 review year, the County had available to it the data necessary to assess the value of all renovations contemplated by the Lease.\n\nThe Government introduced rebuttal expert testimony intended to illustrate that Plaintiff’s expert had overstated the extent of the Property’s increase in value attributable to renovations by choosing a comparison year—2010—that reflected depressed property values as a result of the 2008–2009 financial crisis. In the expert’s opinion, the conclusion that full assessment occurred in 2015—when the County significantly increased the value of the Property by decreasing the buildings’ effective ages (and by extension the capitalization rates) and increasing the economic rent—“sort of jumps off the page at you.”\n\nPlaintiff argues that the County’s change to economic rent cannot weigh at all in favor of finding that the Property was fully assessed in 2015. See ECF No. 122 at 33–36. It argues that the decision was entirely independent of the County’s consideration of the completed renovations.\n\nSpecifically, Plaintiff argues that the County could not have assessed the completed renovations for the first time in 2015 because between 2014 and 2015 the County’s view of the “quality” of element 1—the east wing— dropped from “Good” to “Average.”\n\nIn its Post-Trial Brief, Plaintiff asserts for the first time an alternative theory of windfall damages. It argues that, even if the County did not fully assess the Property until 2015, the Court should order damages anyway on the basis that the County incorrectly used the income assessment method to value the Property in 2015 when it should have used the cost method instead."
  },
  "outcome": {
   "amount": 0,
   "amountIsTheRequestedAmount": false,
   "date": "2025-09-19",
   "description": "After a five-day bench trial the court found that Fairfax County did not assess the Property taking into account all lease-contemplated renovations until tax year 2015, so GSA properly reestablished the Real Estate Tax Base at the 2015 bill ($1,993,293.46) and did not breach the Lease by withholding rent to recoup its claimed $3.4 million of excess tax adjustments; it also declined the lessor's post-trial windfall-damages theory (that the County should have used the cost approach in 2015). Judgment was directed for the United States; the lessor recovered nothing. No appeal is reflected in the opinion.",
   "attorneysFeesAtTrial": null,
   "attorneysFeesOnAppeal": null,
   "appellateChange": "none",
   "finalAmount": 0,
   "finalNote": "Defense judgment. No appeal reflected in the opinion text (subsequent history not otherwise checked). The opinion states no dollar demand by the lessor; its economic stake is the roughly $3.4 million GSA recouped by withholding rent."
  },
  "expectedRole": "Landlord",
  "offers": [
   {
    "by": "defendant",
    "amount": 3400000,
    "kind": "claim (government recoupment)",
    "quote": "He further issued Administrative Action No. 9 memorializing GSA’s claim for $3.4 million and its intent to withhold rent in the amount of $142,219.63 per month for a period of 24 months to recoup its overpayment."
   }
  ],
  "category": "lease-disputes",
  "holdout": false,
  "addedToBacktest": "2026-09-26"
 }
]