John Loringer (Partner-Milwaukee, WI) and Gavin Wardzala (Associate-Milwaukee, WI), after obtaining dismissal of a negligence action at the circuit court level last year, successfully defended their appraiser client before the Wisconsin Court of Appeals. The case involved negligence claims against the appraiser, who had testified in a prior divorce hearing in which the plaintiff was a party. The court held that the appraiser was entitled to the absolute testimonial privilege because his testimony was relevant to issues before the divorce court. Accordingly, the Wisconsin Court of Appeals affirmed the dismissal, finding that the appraiser was immune from civil liability and that the plaintiff’s claims were barred from proceeding. As a result of this successful defense raised at the earliest possible stage of the litigation, the client avoided the need for costly and time-consuming discovery and the retention of subject-matter experts.

Elizabeth Elkington (Of Counsel-Portland, OR) secured summary judgment in the U.S. District Court, District of Oregon, for Wilson Elser’s insurance adjuster client. This case came to the firm’s Portland office on an Order of Default, as the plaintiff had moved for a default order but had not pursued a default judgment. Elizabeth successfully overturned the default order, allowing the case to proceed on the merits.

This matter arose after a tree struck the plaintiffs' home during a windstorm. The plaintiffs filed an insurance claim and retained our adjuster client to facilitate their claim with the insurer. Although the client secured substantial sums on their behalf, the plaintiffs claimed the funds were insufficient to complete the home repairs. They sued our client for breach of contract, failure to mitigate damages, and breach of fiduciary duty. The court rejected each claim. It found that the plaintiffs breached the contract, not our client, by failing to pay for services rendered, and that the hired adjuster had indeed secured sufficient funds to repair their home. The court further held that failure to mitigate damages is not a standalone cause of action under Oregon law and therefore dismissed that claim. Finally, the court determined that there was no breach of fiduciary duty because our client adjusters were not fiduciaries. Accordingly, the court granted judgment as a matter of law in our client's favor and dismissed the case in its entirety on our motion for summary judgment.

Patrick Fischer (Associate-Madison, NJ) secured a dismissal with prejudice in the U.S. District Court, District of New Jersey, on behalf of Wilson Elser’s client, an insurance broker. In this broker malpractice case, the court found that the entire controversy doctrine barred the plaintiff from bringing this claim because he had an opportunity to object to the settlement agreement in the underlying state action, but chose not to do so. The court further found that although the facts in the instant complaint and the underlying state action are not identical, they are related because our client’s defense would focus on the fact that he did not commit malpractice and/or the settlement figure was reasonable based on the strength of the proofs against it. In a noteworthy development, the court issued its Order and Statement of Reasons with no prior notice and without oral argument, based solely on the strength of Patrick’s written arguments.

Audrey Tam (Of Counsel-San Francisco, CA) and Peter Catalanotti (Partner-San Francisco, CA) had a demurrer sustained without leave to amend in a contested commercial real estate case. The plaintiff originally declared the named buyer as a plaintiff but later amended to include only the assignees as plaintiffs. On behalf of our commercial real estate broker client, Audrey and Peter filed a demurrer arguing that the assignees lacked standing to bring the claims. Notwithstanding plaintiffs’ arguments in opposition, the court sustained the demurrer, finding that the assignees themselves could not amend their allegations to alleviate their lack of standing and sustained the demurrer without leave to amend. Damages were estimated well into the hundreds of thousands. 

San Francisco partners Peter Catalanotti and Madonna Herman joined forces with associates Quincy Pham, Inna Nytochka, and Mara Sackman to obtain dismissal of claims of professional negligence and misrepresentation against our broker client by a winery based in Napa, California. Our client had assisted the winery in procuring and renewing a series of insurance policies for several years. Following the Napa Valley wildfires in October 2017, testing of the winery’s grapes showed evidence of a defect called “smoke taint.” The winery waited until early Summer 2019 to reach out to the client regarding the possibility of filing a claim with the carrier, and until March 2020 to file a claim through their new broker. In granting the team’s motion, the Napa County Superior Court found that the client did not breach the heightened duty of care owed by an expert in insuring the winery industry, and the client did not make any of the false representations alleged. This decision was particularly crucial because the client’s insurance agent passed away early in our representation. The most recent demand before the Order was issued was $1.75 million.

John Benford (Partner-Orlando, FL) and Peter Larkin (Partner-White Plains, NY) obtained summary judgment in an accounting malpractice case pending in state court in Orlando, Florida, where the plaintiff was seeking $3.2 million in damages (including prejudgment interest). The case involved two accounting firms (including a national firm) and one of their CPAs in an accounting malpractice lawsuit brought by a Florida-based petroleum company. The plaintiff alleged that the CPA had colluded with its former CEO to increase the CEO’s bonus by using a formula that deviated from the formula contained in the CEO’s employment agreement, and which the plaintiff’s board of directors never approved. The plaintiff claimed that the CPA’s use of the alternate formula caused the CEO to be overpaid a total of approximately $1.2 million in unauthorized bonus compensation. The company also claimed approximately $2 million in prejudgment interest relating to the alleged overpayments. Through targeted deposition testimony, John and Peter demonstrated that several members of the plaintiff’s management were aware of the CPA’s use of the alternate bonus formula and, therefore, the plaintiff petroleum company had institutional knowledge that the CPA was using the different formula. 

Denver, Colorado, partners Kim Koehler and Jason Melichar obtained a complete defense verdict in Probate Court in a professional liability action brought by a former protected person against Wilson Elser’s attorney client. In the action, our client was appointed by the court as a limited conservator. After the protected arrangement was terminated, the former protected person claimed that our client had breached her fiduciary duty and requested imposition of a surcharge. The petitioner claimed significant compensatory damages of several million dollars and the estate's attorney’s fees. Kim and Jason successfully defended the client against the Petition for Surcharge, which would have severely damaged the client both professionally and monetarily had it been granted. After a week-long bench trial, the judge entered judgment in favor of the firm’s client finding the petitioner failed to prove that the client had violated her fiduciary duty. As the prevailing party under an applicable probate statute, our client was awarded reasonable attorney fees and costs exceeding $400,000 by the court.

Gavin Wardzala (Associate-Milwaukee) and John Loringer (Partner-Milwaukee) secured dismissal in the Waukesha Circuit Court in a professional negligence suit brought against Wilson Elser’s clients, a real estate appraisal services company, and its appraiser/employee. The clients had previously conducted a valuation of marital real estate in the context of a divorce proceeding. The plaintiff in this matter argued that our client’s appraiser employee was negligent when he allegedly conducted a “reappraisal” of the residence while preparing to testify at trial. Gavin and John filed a motion to dismiss, arguing that the appraiser was a court-appointed expert entitled to quasi-judicial immunity; our clients were entitled to an absolute testimonial privilege from liability due to the plaintiff’s allegations that damages sustained were a direct result of the company employee’s testimony; and the doctrine of issue preclusion applied to the family court’s determination that the clients were court-appointed, rather than jointly-retained experts. The court concurred with Wilson Elser’s position, liberally construing the appointment order in favor of immunity to protect quasi-judicial officials like our clients from the chilling effect of retaliatory litigation, thereby extending quasi-judicial and testimonial immunity and dismissing the complaint.

Matthew Lee (Partner-McLean, VA) and Taylor Giles (Associate-McLean, VA) prevailed on a demurrer (motion to dismiss) in Arlington County General District Court in a chiropractor malpractice case. Matt and Taylor argued that prior to requestin​g service of process upon the defendant, the plaintiff was required to obtain expert opinions that the firm’s client breached the standard of care, and that the breach was the proximate cause of the plaintiff’s alleged damages. The plaintiff failed to do so, and, at the start of trial, the Court granted the client’s motion to dismiss for failure to obtain the requisite expert opinions. 

​Peter Catalanotti (Partner-San Francisco, CA) and Quincy Pham (Associate-San Francisco, CA) defended a fiercely contested case filed by real property sellers against our real estate broker and agent clients. Quincy had a demurrer sustained without leave to amend on all causes of action. The sellers alleged professional negligence, breach of fiduciary duty, negligent misrepresentation, vicarious liability, promissory fraud, breach of contract, and breach of the implied covenant of good faith and fair dealing. After only the second round of demurrers, the court dismissed the case against our clients. 

Peter Catalanotti (Partner-San Francisco, CA) and other members of the San Francisco Design Professionals Practice team secured a win on a summary judgment motion in the Northern District of California in a construction defect case. The plaintiffs/homeowners sued our structural engineer client for construction defects related to a $9 million property in Carmel, California. On behalf of our defendant/ engineer client, Peter and his team moved for summary judgment based on the 10-year statute of repose.  The Court found that the plaintiffs failed to meet their burden that the claims against the structural engineer were timely. 

William C. Nelson (Of Counsel-Phoenix, AZ) and Marcus R. Martinez (Associate-Phoenix, AZ) prevailed in a case before the Arizona Federal District Court​, that began when four pro se plaintiffs, all family members living in Arizona, received unfavorable rulings in a California state probate court case. Dissatisfied with the rulings, they filed an unsuccessful federal lawsuit in California, after which they filed a lawsuit in Arizona against 19 defendants, including the judges, attorneys, and law firms who were involved in their previous cases. Notably, none of the defendants were residents of Arizona or had any meaningful connection to the state. The central legal issue became whether the Arizona court had personal jurisdiction over these California-based defendants. The plaintiffs attempted several novel arguments to establish jurisdiction, including that the entire California judiciary was "corrupted." The court ultimately dismissed all 19 defendants for lack of personal jurisdiction, emphasizing that the defendants had no meaningful contacts with Arizona and that the only connection to the state was the plaintiffs' residence there. Additionally, the court denied the plaintiffs' request to amend their complaint, finding it would be futile and was sought in bad faith, particularly noting that the plaintiffs appeared to be engaging in a pattern of repeatedly suing everyone involved in their previous unsuccessful lawsuits. The case reinforces the principle that personal jurisdiction requirements cannot be overcome simply because plaintiffs prefer to litigate in a different state, even if they believe the original state's courts are biased against them.

David M. Morrow (Partner-Los Angeles, CA) and James A. Stankowski (Partner-Los Angeles, CA) successfully defended a design firm and its owner in a malpractice and payment dispute. The plaintiff, a former client, asserted professional negligence, fraud and unfair business practices in connection with our client’s design of a cannabis dispensary in Hollywood, California. The plaintiff alleged that our client misrepresented its licensing and qualifications, and rendered deficient plans, causing the dispensary owners costly delays and replacement expenses. After two years of litigation, David and Jim obtained an order imposing issue and evidence sanctions against the plaintiff. Based on the order, David and Jim prevailed on a subsequent Motion for Judgment on the Pleadings, securing a judgment in the client’s favor and dismissal of the case with prejudice.  

Melissa Young (Associate-New York, NY) and Joseph Francoeur (Partner-New York, NY) recently achieved early dismissal of fraud and negligence claims filed against a title company that had arranged a closing for a mortgage loan and transfer of partial ownership in residential premises located in Queens, New York. The plaintiff alleged she was the sole owner of the transferred premises for 30+ years prior to the closing, and that such premises had been free and clear of any encumbrances – until two of the co-defendants (private individuals / neighborhood acquaintances) allegedly impersonated the plaintiff at the closing, added themselves to the deed, took out a $500,000 mortgage in the plaintiff’s name, and absconded with the mortgage proceeds. Further, plaintiff alleged she did not attend the closing and never consented to take out a mortgage loan or transfer her property. The plaintiff filed a lawsuit against all parties involved in the closing, including the two alleged fraudsters, the mortgage lender, the closing agent who notarized the borrower’s signature at the closing, and the title company. Melissa and Joe argued that the title company did not owe a duty to the plaintiff as the title company was retained by the lender, not the plaintiff, and in the absence of fraud or conversion the title company could not be held liable for negligence. With respect to the fraud claims, Melissa and Joe further argued that the allegations of the proposed amended complaint were based purely on conjecture and speculation, and that such amended pleading was devoid of any facts to substantiate the plaintiff’s claims. The court agreed that both the complaint and the proposed amended complaint lacked sufficient factual allegations to support any causes of action against the title company and granted Melissa and Joe’s motion, while denying plaintiff’s cross-motion to amend.

Orlando partners John Benford and Nick Freeman obtained a favorable verdict for less than 2 percent of the amount demanded by the plaintiff after a two-week trial in the Southern District of Florida. Wilson Elser was retained to defend a national distributor of firearm parts in a lawsuit brought by a gun manufacturer that asserted a total of 12 claims based on false advertising, breach of contract, breach of warranty and various defamation counts. The court awarded our client partial summary judgment on 9 of the 12 claims one week prior to trial. The case then proceeded to a 10-day jury trial on two of the breach of warranty claims and one defamation claim. The plaintiff demanded $40 million prior to trial. During the course of the trial, John obtained numerous favorable rulings in limine from the court excluding key portions of the plaintiff’s evidence. During closings, the plaintiff requested an award of $8.5 million from the jury. The jury found for our client on both breach of warranty claims, and for the plaintiff on the defamation claim, awarding plaintiff $500,000 in damages, which represented less than 10 percent of the amount the plaintiff requested from the jury at the conclusion of the trial.

Phoenix, Arizona, partners Taylor Allin and Brian Del Gatto and associate Blake Bracht obtained dismissal of a defamation case against our client, a liquidator in a UK bankruptcy who was appointed to oversee liquidation of the plaintiffs’ assets. Plaintiffs alleged our client made numerous harassing, threatening phone calls and sent text messages to them and their U.S. business partners, forcing the failure of multimillion-dollar business deals. Taylor, Brian and Blake argued the allegations were false and being used to leverage a better settlement of the bankruptcy debts in the United Kingdom. They lost a Motion to Dismiss on jurisdiction early, and after completing discovery and establishing no communications from the United States to the UK could be proven by evidence, the U.S. District Court, District of Arizona ordered an evidentiary hearing on the jurisdiction issue. The plaintiffs made false statements to the court about why they could not attend the evidentiary hearing and had it postponed multiple times. The Wilson Elser team filed a motion for sanctions once evidence of plaintiffs' false representations to the court were definitively established. The court agreed, noting plaintiffs were purposely avoiding attending the evidentiary hearing and unreasonably delaying a judicial decision. Wilson Elser successfully argued that the case should be dismissed with prejudice as lesser sanctions would be inappropriate. 

Arman Nafisi (Partner-Phoenix) and Leeza Birko (Associate-Phoenix) obtained a dismissal in a breach of contract and legal malpractice suit against Wilson Elser's client, a licensed attorney. During oral arguments, Leeza contended that the language in our client's retainer agreement with the plaintiff specifically limited the scope of engagement. In addition, the plaintiff's allegations were used against him to prove that the restricted scope was exceeded. Arizona's procedural rules allowed for annexing the retainer agreement to the moving papers without requiring the court to treat the motion as one for summary judgment. The court granted Leeza and Arman's motion to dismiss. The court was further persuaded to dismiss the plaintiff's multitude of other claims as inapplicable, adopting as an issue of first impression the ABA's stance against "shotgun pleadings" and because the claims fell outside the gravamen of the plaintiff's action.

Jeremy Stephenson (Of Counsel-Charlotte, NC) and Kayla Jones (Associate-Charlotte, NC) prevailed in a professional liability case against the firm’s waterproofing company client in Davie County Superior Court (Mocksville, NC). The plaintiffs contracted with our client's licensee for purchase and install of a foundation/ basement waterproofing system. After continuing issues with water penetration, the plaintiffs sued for breach of contract, express warrantee, implied warrantee, unjust enrichment and statutory unfair deceptive trade practices. After three days of jury trial, the plaintiffs abruptly dropped their demand to 13 percent of the mediation demand for a complete confidential release.

Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) won a motion to dismiss in Second Judicial District Court in Reno, having been retained by a local trucking company whose vehicle was involved in a tip-over accident with another commercial truck. Upon filing the suit, Plaintiff completed all required preliminary procedures with one critical exception: the timely opening of discovery. This failure to act, despite reminders from Brown seeking the opening of discovery, resulted in the district court granting a motion to dismiss on behalf of the defendant after finding no extraordinary circumstances to justify the delay.

Karen L. Bashor (Partner-Las Vegas, NV) and Colt Dodrill (Of Counsel-Las Vegas, NV) obtained summary judgment in favor a petroleum transportation company in Clark County District Court. The plaintiffs alleged the client’s tractor-trailer negligently rear-ended their vehicle, causing significant bodily injuries and totaling the vehicle. Suspecting this was a staged accident, Karen and Colt propounded extensive discovery, including requests to admit the accident was staged. Their investigation revealed that a witness had been a defendant in a separate action filed by the same plaintiffs’ counsel regarding a similar accident that occurred just a half hour before. That witness’s deposition testimony confirmed the first accident was staged by the same individuals in the same vehicles involved in the client’s accident. Shortly thereafter, the plaintiffs’ counsel withdrew, and Karen and Colt moved for summary judgment based on the witness’s testimony, accident photographs, the client’s statement and the plaintiffs’ failure to respond to discovery. The plaintiffs elected not to oppose the motion, which the court granted, finding that by staging the accident, the plaintiffs consented to and assumed the risk of injury as a matter of law.

Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) were retained by a national department store to defend against a lawsuit alleging store security had falsely imprisoned and injured a customer. The customer was criminally convicted of shoplifting at the store, but still insisted that he had been wrongly detained and falsely imprisoned by store security. The claimant filed multiple motions with the Eighth Judicial District Court seeking to expand the store's liability, but never completed the process to open discovery. When confronted with a motion to dismiss for not timely opening discovery, the claimant blamed delays due to COVID-19, but the court pointed to the multiple motions he had been able to file despite the pandemic. The court then granted the motion to dismiss.