Successes

Summary Dismissal Victory Affirmed by Phillip E. Seltzer and Samantha K. Heraud In Defense of Lawyer and Law Firm on Claim of Legal Malpractice

By Opinion dated October 24, 2017, the Michigan Court of Appeals recently affirmed a prior trial court victory achieved by the Lipson Neilson team in obtaining summary dismissal of a legal malpractice claim on the ground of collateral estoppel. In this case, a former divorce Client sued his attorneys for allegedly coercing him to enter into a Consent Judgment of Divorce, which he asserted was inadequate and patently unfair. The Client had previously tried to set aside the Consent Judgment, through other counsel, based on the claim the Client had been coerced to settle. He was unsuccessful before the trial court and the Court of Appeals. The Michigan Supreme Court also denied leave, ending the post-judgment effort to set aside the divorce Consent judgement.

Afterward, the client filed his legal malpractice claim against his former attorneys. Although the client alleged numerous grounds of malpractice, they were ultimately predicated upon the notion that the negligence and misconduct of the attorneys resulted in forcing and coercing the underlying Consent Judgment. However, because the Client had a full opportunity to litigate the issue of coercion, and lost on that, he was now collaterally estopped from relitigating the same issue of coercion in the legal malpractice case. The summary dismissal entered by the trial court was affirmed by a unanimous panel of the Michigan Court of Appeals.

Attorneys Phillip E. Seltzer and Shawn Grinnen Successfully Obtain Substantially More Than the Appraised Fair-Market Value for Their Client’s LLC’s Membership Interest in an Oppression/Conversion Lawsuit

In a LLC membership dispute case concerning breach of fiduciary duties, membership oppression, conversion, and aiding and abetting conversion of their client’s membership interest, Attorneys Phillip E. Seltzer and Shawn Grinnen successfully obtained, via settlement, substantially more than the appraised fair-market value of their client’s membership interest in the LLC.

As part of the settlement, the client received $515,000:

  • $320,000 representing the appraised fair-market value of the client’s membership interest.
  • Plus an additional $195,000 representing a compromise on the remaining damage claims against the controlling LLC member and certain other individuals who allegedly aided and abetted the wrongful conduct of the controlling members.

Based on the evidence developed in discovery, the Lipson, Neilson team argued that the Client’s LCC membership interest had essentially been converted. The nature, character and misconduct of the controlling members tortious conduct had essentially denied all meaningful rights in the LCC by the Client – rights that are specifically deemed “personal property” under the LCC Act. Under Michigan law, only personal property (as opposed to intangible business interests) can be the subject of a conversion claim.

By creatively arguing that their client’s LLC membership interest had been wrongfully converted, attorneys Seltzer and Grinnen convincingly demonstrated that the controlling members and those that allegedly aided and abetted it had a strong likelihood of being found liable for not only paying the $320,000 value for the membership interest, but also the potential for treble damages under Michigan’s conversion statute – a statute that also allows for recoupment of attorney fees “in addition to any other right or remedy the person may have at law or otherwise.”

With Summary Disposition motions pending and fearing the Court was about to find the controlling members and the other individual defendants liable for $320,000 in damages plus potential trebling and attorney fees, the defendants agreed to settle for $515,000 in exchange for a final dismissal of the case. The creative use of the conversion statute immeasurably made the case stronger for the client, who was overwhelmingly satisfied for obtaining a resolution that was well in excess of the appraised fair-market value of his membership interest in the LLC Company.

Summary Dismissal Victory by C. Thomas Ludden and Samantha Heraud
As their initial response to the Complaint, Lipson Neilson challenged whether a defendant had been served with the summons and complaint before the summons expired. After reviewing the parties’ briefs, the Wayne Circuit Court held an evidentiary hearing regarding whether the process server had delivered the summons and complaint to the defendant. Upon completion of the evidentiary hearing, the Wayne Circuit Court granted the motion and dismissed all claims against the defendant.

Summary Dismissal Victory Achieved by Phillip E. Seltzer and Shawn Grinnen In Defense of Lawyer on Claim of Legal Malpractice
May 2017 – A first responsive motion for summary dismissal of a legal malpractice claim was recently granted in favor of a Defendant-Lawyer represented by Lipson, Neilson. The Defendant-Lawyer represented Plaintiff in a prior criminal proceeding involving his alleged failure to register as a sex offender for a prior offense and engaging in sexually abusive conduct with a minor over Facebook. After waiving the preliminary hearing and obtaining discovery, the Plaintiff decided to terminate Defendant-Lawyer and new counsel was appointed. Defendant-Lawyer formally withdrew via court order.

Over a month later, while represented by successor counsel, Plaintiff entered into a voluntary plea agreement, admitted his guilt of the criminal charges on the record, admitted to the location of the crimes, affirmed that his decision to plead guilty was voluntary and without threats or other inducements, and that he was knowingly waiving his right to trial and defend. While serving a four-year sentence, Plaintiff sued Defendant-Lawyer for malpractice, claiming that the waiver of the preliminary exam was critical since the alleged crimes occurred in a different county and no jurisdictional basis existed for his prosecution or guilty plea in the County Court where he was charged.

As an initial response to the Complaint, the Lipson, Neilson team filed a motion for summary dismissal arguing that the claim of legal malpractice was barred because: (i) Plaintiff’s voluntary plea of guilty cut off all causation for Plaintiff’s injuries (wrongful incarceration and loss of business and loss of income) as a matter of law, and (ii) Plaintiffs’ statements on the record, concerning his guilt and the location of the underlying crimes, judicially estopped Plaintiff from asserting the crimes occurred elsewhere or that Defendant-Lawyer failed to raise a jurisdictional argument at the preliminary exam. Additionally, during the dismissal motion hearing, Plaintiff’s asserted for the first time that his plea agreement was not voluntary and he lied under oath because his lawyer supposedly told him to so in order to get a more lenient sentence.

As a result, the Lipson, Neilson defense counsel spontaneously argued that the legal malpractice claim was also barred under the the doctrine of in pari delicto – the wrongful conduct rule – because Plaintiff’s criminal conduct in committing perjury at his plea hearing was the central cause of his incarceration and consequential damages. Accordingly, such wrongful conduct prohibited Plaintiff from pursuing any civil remedy. The Trial Court granted the motion, adopting the legal grounds presented, and summarily dismissed the case.

Victory Achieved by Phillip E. Seltzer and Shawn Grinnen In Defense of Law Firm against Tortious Interference and Slander of Title Claims
May 2017 – The client-Law Firm, which specializes in representing condominium and community entities, initiated a lawsuit against a condominium developer seeking monetary and declaratory relief. The suit was based on a statute that appeared to mandate the automatic reversion of legal title of unbuilt condominium units to the Condo Owner Association if, after ten years, the Developer failed to build and complete those units per a filed Master Plan.

After a ten-year building hiatus, the Developer began undertaking the build out of three lots (out of dozens still unbuilt) and was in the process of selling one of the lots. The Law Firm, citing the statute, filed a Claim of Interest in the real estate records, on behalf of its client (the Condo Owner Association), asserting property rights in all unbuilt lots, including the three under construction.

A lawsuit followed by the client-Law Firm (on behalf of the Condo Association) against the Developer. Developer filed separate legal claims against the Law Firm claiming that its legal advice and actions constituted slander of title and tortious interference with contractual relations and interference with the economic expectancies of the Developer.

The Lipson, Neilson team argued that no improper tortious interfering conduct existed to sustain the interference claims, only lawful and professional legal advice to clients proffered in good faith to assist in protecting disputed property rights. The trial judge agreed and dismissed the interference claims, noting that the filing of a lawsuit to declare disputed property rights is the essence of proper – not tortious – conduct. The Trial Court also agreed that no slander of title claims could survive because of the lack of legal malice – namely, the law firm engaged in a good faith interpretation of a statute that had never been the subject of a legal opinion by any appellate court or the Michigan Supreme Court.

Under this circumstance, malice did not exist when the position advocated by the law firm is in good faith and posited a reasonable belief in a valid protectable property interest. The non-existence of malice was underscored by the lack of any existing legal authority to contradict the Law Firm’s reasoned belief (even if it is later determined to be legally inaccurate.)

Victory Upheld in Defense of Lawyer for Phillip E. Seltzer, C. Thomas Ludden and Samantha Heraud
By order dated April 4, 2017, the Michigan Supreme Court recently ruled to let stand a prior victory achieved in the Michigan Court of Appeals in the matter of Boladian et al v. Thennisch, et al, Unpublished Mich. Ct. of App., issued April 12, 2016 (Docket #No. 324737). In Boladian¸ a lawyer was sued for, among other things, malicious prosecution, abuse of process and defamation, arising from the failed prosecution of civil matters against a music publishing company and its owner. The Lispon, Neilson legal team obtained summary dismissal of the referenced claims in the trial court and defended that result on ensuing appeals. Click here for full article.

Favorable Resolution for Employer Client with Multiple Title VII Cause Findings by Jessica Green
An employer client faced several Charges of Discrimination before the Nevada Equal Rights Commission (“NERC”). Following a lengthy investigation into each Charge, NERC found cause to believe discriminatory conduct occurred in only two of the Charges and issued reasonable cause findings. Both Charges were resolved through conciliation – each resulting in extremely favorable confidential settlements for the employer.

Resolution with Claimant Ends EEOC Investigation by Jessica Green
An employer facing multiple Charges of Discrimination before the EEOC teetered on the precipice of a full-scale investigation by the EEOC for institutional discrimination. Despite objections from the EEOC investigative team, we negotiated a favorable resolution with an individual claimant that ultimately led to the EEOC ceasing its investigation entirely.

Favorable Outcome & Attorney Fees Recovered in Real Estate Case by David Michael
In a commercial leasing bankruptcy case involving a debtor franchisee, we were able to counsel our landlord-client through the Chapter 11 process and successfully replace the debtor with a new tenant. We also recovered all of our client’s attorney fees from the debtor in the process.

Medical Malpractice Victory by Thomas Ludden and Karen Smyth
In Tyra v Organ Procurement Agency of Michigan, Michigan Supreme Court Nos.148079 and 148087, ___ Mich ___; ___ NW2d ___, we persuaded the Michigan Supreme Court to reverse the Michigan Court of Appeals and reinstate the trial court decision to grant summary disposition to our client on statute of limitations grounds. This case clarifies both the notice of intent requirements that a plaintiff must follow before filing a medical malpractice case and confirms that the failure of a plaintiff to follow these statutory requirements means that the filing of a medical malpractice lawsuit does not toll the statute of limitations.

Trial Victory by Bill Ebert and Sunny Jeong
Assistant Buffet Manager of a prominent casino resort was sued for allegedly orchestrating a series of intentional torts including false imprisonment, infliction of emotional distress, and defamation against plaintiff, based on racial animus. Plaintiff was represented by a prominent trial attorney who specializes in bringing such claims against casinos. Plaintiff sought compensatory and punitive damages. We successfully opposed Plaintiff’s efforts to remove the case from the cost effective non-binding arbitration program. After an arbitration award in our client’s favor, Plaintiff demanded a trial de novo. The jury returned a unanimous verdict in favor of our client and the casino.

Trial Victory by Joe Garin and Angela Ochoa
Insurance Broker client was sued for intentional and negligent misrepresentation. Plaintiff’s Pre-trial settlement demand was for $1.5 Million. We recommended an offer of judgment at $140,000 before trial. During the 6 day trial, the Court dismissed the intentional misrepresentation claim and the jury considered the negligent misrepresentation claim. The verdict was for approximately $58,000. However, based on offer of judgment sanctions, the client is entitled to recover approximately $35,000 and Plaintiff will take nothing.

Legal Malpractice Victory by Phillip Seltzer and Starr Kincaid
Michigan Lawyers Weekly described this case as one of the “Most Important Opinions of 2014″. In this groundbreaking case, the Michigan Court of Appeals ruled that the trial court correctly dismissed a legal malpractice suit against the attorney and his law firm because the underlying product liability claim plaintiffs’ asserted should have been pursued was statutorily preempted under the federal Medical Device Act (“MDA”). The opinion provides a ground breaking analysis of the MDA preemption defense and explains why the plaintiffs could never prove they would have succeeded on their underlying product liability claim necessary to sustain a viable legal malpractice suit.

Trial Victory by Joe Garin and Steve Keim
Real Estate Broker client was sued for 1) Breach of Contract, 2) Breach of Fiduciary Duties, 3) Violation of the Securities Act, and 4) intentional and negligent misrepresentation. Plaintiff’s damage model requested an award in excess of $1 Million. We recommended an offer of judgment for $20,000 before trial. Following 3 days of trial, the Court dismissed all claims against our client. Based on offer of judgment sanctions, the client was permitted to request an award of costs and attorney fees of $65,000. The case later resolved for less than the earlier offer of judgment.

Trial Victory by Joe Garin
Attorney client was sued for legal malpractice with respect to the handling of an underlying criminal matter. The case was tried for 3 days and the jury returned a verdict in favor of the attorney client.

Accounting Malpractice Victory by Bill Ebert and Jessica Green
The executor of an Estate fraudulently used the Estate’s assets to fund a Ponzi scheme, and concealed the fraud by grossly overpaying federal and state death taxes. The Decedent’s daughter sued Accounting Firm and individual accountants for malpractice for allegedly failing to timely file amended returns to obtain a refund of the overpaid taxes, and concealing the alleged failure. We obtained summary judgment by establishing that the daughter failed to properly reopen the Estate and to obtain appointment as the qualified representative of the Estate.

Legal Malpractice Victory by Joe Garin and Steve Keim
Attorney client was sued for legal malpractice with respect to the handling of mechanic liens and related litigation. Plaintiff requested damages in excess of $700,000. The trial court granted motion for summary judgment based on Plaintiff’s failure to fully litigate the underlying claim and the resulting inability to prove that there would have been a better outcome “but for” the alleged legal malpractice. Following victory in the trial court, we were awarded $113,968.52 in costs and attorney’s fees in our client’s favor. The case was later affirmed by the Nevada Supreme Court.

Favorable Settlement in Death Case for Bill Ebert
Decedent, an employee of a prominent casino resort, suffered a catastrophic stroke. Casino EMT did not recognize symptoms of stroke and delayed calling emergency medical services for approximately one hour. Decedent underwent intensive care for some ten days and ultimately expired. The adult and minor children of the Decedent sued for wrongful death, seeking compensatory and punitive damages. Medical specials for Decedent were in six figures. We eliminated the punitive damages claim on a motion to dismiss. We defended primarily on the bases of industrial injury immunity and lack of causation, engaging in significant expert investigation on both grounds. Prior to engaging in significant discovery, a mediation was held with resulted in a favorable confidential settlement.

Trial Victory by Joe Garin
Attorney client was sued for legal malpractice in the preparation of an estate plan. Plaintiff requested damages in excess of $1 Million. The case was tried for 4 days and the jury returned a verdict in favor of the attorney client.

Favorable Settlement in Catastrophic Injury Case for Bill Ebert, Sunny Jeong, and Steve Keim
Related Architectural Firms were target defendants for alleged professional negligence in a major catastrophic injury case. The General Contractor was also a target defendant. Multiple subcontractors and consultants were also sued. General Contractor unsuccessfully tried to sue our clients for contribution and indemnity. We succeeded in dismissal of cross claim on procedural grounds. While the contribution/indemnity claim was pending, Plaintiff delayed bringing Architectural Firms into the case for approximately a year. When Plaintiff brought Architectural Firms into the case as Defendants, General Contractor aggressively attempted to shift blame to Architectural Firms based on alleged professional negligence, designating multiple experts on the subject. During discovery, we succeeded in discrediting General Contractor’s experts, and severely limited the effectiveness of Plaintiff’s experts. As a result, General Contractor formally withdrew all of its liability experts and adopted our experts, thereby presenting a defense which of necessity exonerated Architectural Firms. Shortly thereafter, the case was resolved by a confidential global settlement under favorable terms for the Architectural Firms.

Legal Malpractice Victory by Joe Garin and Steve Keim
Attorney client was sued for legal malpractice with respect to transactional handling of a large internet based gambling website. Plaintiff sought damages in excess of $1,000,000. The United States District Court granted summary judgment in favor of Defendants based on Defendants’ analysis and interpretation of international law.

Dismissal in Multiple HOA Case Dismissals by Bill Ebert, Sunny Jeong, and Siria Gutiérrez
Multiple cases brought against multiple Home Owners Associations for alleged wrongful foreclosures of HOA liens. We have obtained multiple dismissals through pre-answer motions to dismiss, based on procedural defects and failure to state claims against the HOAs. In addition, through negotiation, multiple cases have been dismissed voluntarily by the plaintiffs.

Real Estate Victory by Joe Garin and Steve Keim
Real estate broker and agent clients were sued for breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment, fraud, intentional misrepresentation, negligent misrepresentation, and violation of statutory duties based on their alleged failure to disclose material defects with the property. Prior to the Court’s ruling on Defendants’ motion for summary judgment, counsel negotiated a deal where Plaintiffs waived their right to appeal if Defendants’ motion was granted. The trial court ultimately granted summary judgment in Defendants’ favor as to all claims resulting in a complete defense for the clients.

Favorable Settlement in Malicious Tort Case for Bill Ebert and Siria Gutiérrez
Prominent Casino/Resort and one of its supervisors was sued for a variety of intentional torts, based on alleged intrusion in hotel room. Plaintiffs claimed significant medical injuries resulting in lost income opportunities, and sought compensatory damages for medical expenses, pain and suffering, and a six figure economic loss. Through expert discovery, we established causation defenses, as well as a strong liability defense. On the eve of trial the case was settled confidentially under favorable terms to our clients.

Legal Malpractice Victory by Joe Garin and Steve Keim
Attorney client was sued for legal malpractice regarding his handling of a personal injury case and underlying medical malpractice claim. Whereas co-defendants paid a six-figure settlement, counsel won a motion for summary judgment based on the expiration of the applicable statute of limitations. Client successfully defeated Plaintiffs’ motion for reconsideration and the Court awarded attorney’s fees and costs in clients’ favor, which were later leveraged to waive any appellate rights.

Legal Malpractice Victory by Joe Garin and Steve Keim
Attorney clients was sued for legal malpractice, breach of contract, and breach of implied covenant of good faith and fair dealing based on their alleged failure to obtain injunctive relief to prevent a foreclosure. Clients prevailed on their motion for summary judgment as to all claims. Pursuant to an offer of judgment, clients were entitled to over $65,000 in fees and costs, which clients leveraged to obtain a waiver of any appellate rights.

Real Estate Victory by Joe Garin and Steve Keim
Real Estate Trustee Company was sued for fraud based on their alleged improper and unauthorized non-judicial foreclosure on real property. Clients immediately filed a motion for summary judgment, which the trial granted finding all actions were authorized under Nevada law.

Legal Malpractice Victory by Joe Garin and Steve Keim
Attorney client was sued for malpractice based on his advice and services regarding an underlying real estate transaction. The complaint contained over 30 allegations against various co-defendants. Client filed a motion to dismiss for lack of subject matter jurisdiction. The United State District Court granted said motion stating it lacked jurisdiction under 28 USC 1367.

Anti-SLAPP Victory by Joe Garin and Siria Gutiérrez
Hospital Executive Client was engaged by a municipality to conduct an investigation into alleged misconduct by EMS personnel. As a result of the investigation, the EMS personnel were terminated. Later, the EMS personnel filed suit against our client and others. We filed an anti-SLAPP motion which was granted dismissing our client from the case. The Court awarded costs and fees in favor of our client for approximately $22,000.

Favorable Settlement in Complex Burn Case for Bill Ebert
Plaintiff, a young IT specialist employed by a major bank, was a guest at a major Casino/Resort. Plaintiff claimed a steam table malfunctioned, allegedly causing third degree steam burns and thermal nerve trauma including entrapment of the superficial branch of the radial nerve, all resulting in severe nerve damage. Plaintiff underwent multiple surgeries, which included efforts to relieve compression on the ulnar nerve, excision of portions of the nerve, and the harvesting of nerve tissue from the lower leg and transplanting it to the right arm. The nerve transplant procedures were complicated by serious infections at the lower leg harvest site. The infections resulted in significant permanent tissue loss which in turn resulted in very noticeable disfigurement to the calf. As a result of the complications, Plaintiff was left with a permanent limp. Plaintiff was diagnosed with Reflex Sympathetic Dsytrophy (RSD), more properly known as Complex Regional Pain Syndrome (CRPS) in his affected arm. The CRPS allegedly spread to his leg, related to the infection. Treatments for pain included stellate ganglion blocks and lumbar sympathetic plexus block injection were unsuccessful. Plaintiff underwent implantation of a permanent spinal cord stimulator to address his upper extremity CRPS. At the time of settlement, he and his physicians were considering the implantation of two additional spinal cord stimulators for his lower extremity complaints and alleged CRPS. We defended the case based on both liability and causation. We retained an expert in physics, including fluid dynamics and thermodynamics, to establish that Plaintiff’s version of events was not possible. We also retained an expert in upper extremity trauma to establish that the sequence of surgeries was caused by a pre-existing repetitive stress compression trauma, rather than the alleged burns. In addition, we retained an expert in neurology and CRPS to establish that the CRPS diagnosis was unsupportable. While we conducted percipient witness, document discovery, and confidential expert investigation, we simultaneously engaged Plaintiff’s counsel with overtures to engage in mediation prior to the designation of experts, and attendant expert discovery. At the mediation, we made heavy use of our still confidential experts to demonstrate the potential for an adverse result for Plaintiff, and were able to resolve the case with a confidential settlement.

Angela Nakamura Ochoa Successfully Prosecutes Bench Trial in Clark County District Court 
Angela Nakamura Ochoa successfully prosecuted a bench trial in the District Court of Clark County, Nevada.  This lead to judgment for the full amount sought on behalf of her client, an automobile leasing company, located in Cincinnati, Ohio.  The case required application of both Ohio and Nevada law, as there was a choice of law provision in the lease agreements.  Prior to trial, Ms. Ochoa obtained partial summary judgment as to liability against defendants, leaving solely the issue of damages at the time of trial.