These are just a few examples of proud moments in my forty plus year career as an attorney practicing law in Arizona.
In 1988, two years after being admitted to the state bar, the firm I worked for was retained by Clifford Wolfswinkel to represent him in cases involving real property ownership disputes involving numerous properties in the east valley, then pending in the bankruptcy court. I was brought in as the sole associate working on the case. During the time we represented Clifford I quickly learned, from the experience, complex real estate and commercial litigation at the highest level and against then-prominent attorneys. Since all the litigation was pending in the bankruptcy court, I was also introduced to its practices and procedures.
In the late 1980s, when bankruptcies under the new Bankruptcy Code were filed, I commenced doing more bankruptcy work due to that experience.
Ten years after the Wolfswinkel case, in 1998, I represented Herbalife distributors against Herbalife in trial for breach of contract and other claims. And won. No distributor had ever taken a case to trial against Herbalife. For good reason: Herbalife had a reputation back then for dragging out litigation. Once they'd made the case extremely expensive, they'd then offer a small settlement, knowing that the plaintiffs would most likely take them out of necessity. They tried and failed to do that with my cases. They were nothing short of shocked when my clients - with my support - turned down their $100,000 offer and instead went to trial. This was the first time a distributor had done this, but we knew we had a good case. We were proven right. After winning a month-long jury trial against two large regional law firms representing Herbalife, Herbalife eventually paid over $1,000,000 to satisfy the judgment.
Some selected photographs from the 1970's.
In 1999, not long after the Herbalife case began, I negotiated a million dollar settlement on a patent infringement case. This case in particular involved the patent for a dental hand piece (like a dental drill) lubricant. It was litigated for years, with several hearings -- including what they call a "Markman Hearing", to determine the scope and meaning of the patent. The Defendants were represented by a major Washington DC law firm. Depositions were taken across the United States and in Canada. Experts were hired. All throughout, the Defendants refused to make any settlement offers. So in order to finally settle the case, I had to prepare a winning case and show the representation for the Defendants that he was more than willing to go to trial, and capable of winning it. In the end, the case was settled for over a million dollars, right before trial, in the United States District Court.
Four years later, in 2003, I litigated against and then negotiated a settlement of claims against a State, a police department, a hospital and a doctor totaling $3,800,000 for negligence involving the duty to report child abuse and negligence. I was made aware, via a family law attorney, that a seven-year-old girl who lived with her mother had been raped over a period of a year-and-a-half by her mother’s boyfriend. I was told that the investigation by authorities had been negligent and prematurely concluded without protecting her. Even worse, that her doctors had failed to follow the law. I took the case even after being told by several other attorneys that it was going to be extremely difficult, that me and my client weren't going to be awarded much in damages, and that they'd probably have to go to trial. And we would lose. Despite knowing that, I felt he needed to help this girl. I wanted desperately to get her enough money that she could have something resembling a normal life. Enough money that she could, at the very least, obtain whatever treatments she needed after this extremely traumatic experience. After two law suits and a hotly contested litigation, I was able to obtain settlements for her that will continue to pay her over $20,000,000 over the rest of her life.
Recently, in 2020, I reorganized a regional chain of coffee shop restaurants, saving over a hundred jobs in several states and the business income for its owners. My Chapter 11 practice focuses on saving small to medium sized companies for their owners and for the employees who work for those companies. I have twice reorganized a regional chain of coffee shop restaurants, leading to its ongoing business operation.
Below you'll find some case samples and their accompanying Westlaw files.
Daley v Earven. Judgment for specific performance of agreement for sale of farmland was entered in the Superior Court and affirmed by the Court of Appeals. Sellers created encumbrances against the farmland in favor of their relatives. Pursuant to a petition for order to show cause, the Superior Court of Graham County ordered prepayment and consolidated actions involving post judgment encumbrances. Sellers appealed. The Court of Appeals held that: (1) trial court had inherent power to issue post judgment orders to enforce its final judgment for specific performance; (2) judgment for specific performance did not prohibit prepayment of note and mortgage; and (3) cases involving encumbrances placed on property were properly joined with case where judgment for specific performance was entered.
Hullett v Cousin. After dissolution of limited partnership and distribution of assets to partners, judgment creditor of partnership sued limited partners, alleging that transfer of assets to partners was voidable as fraudulent transfer. The Superior Court, Maricopa County, granted summary judgment for partners. Creditor appealed. The Court of Appeals reversed and remanded. Limited partners appealed. The Supreme Court held that: (1) as a matter of first impression, a claim that is time-barred is not a “right to payment” for purposes of the Uniform Fraudulent Transfer Act (UFTA), and (2) limited partners were not estopped from challenging validity of claim that allegedly rendered partnership insolvent, on the basis that claim was time-barred at time of partnership's dissolution and transfer of assets to partners. Judgment of Court of Appeals vacated, and case remanded.
In re Cedic Development Co. Law firm which had entered agreement to represent debtor in connection with debtor's voluntary bankruptcy petition after first two law firms retained by debtor had withdrawn filed request for additional attorney fees after it successfully represented debtor. The Bankruptcy Court made enhancement of $10,000, and firm appealed. The United States District Court for the District of Arizona reversed. Law firm appealed. The Court of Appeals held that award of additional fees, on basis that fee agreement did not take into account all factors necessary for consideration in determining lodestar amount, or results obtained and risk of nonpayment, and that enhancement was necessary to provide reasonable compensation, was within Bankruptcy Court's discretion. District Court reversed, and judgment of Bankruptcy Court reinstated.
In re Sedona Institute. Creditors' co-counsel filed administrative expense claim for attorney fees incurred in obtaining appointment of examiner in Chapter 11 case. The United States Bankruptcy Court for the District of Arizona denied application, as well as motion for reconsideration, on ground that fees could not be granted unless creditors had independent allowable expense beyond the fees. Creditors' co-counsel appealed. The Bankruptcy Appellate Panel (BAP) held that: (1) sole issue before BAP was legal issue of whether fees could be recovered absent any other allowable expense, not whether there had been substantial contribution to the estate, and (2) creditor who provides substantial benefit in case need not incur expense other than attorney fees as prerequisite to award of reasonable fees and costs under statute governing allowance of administrative expenses. Reversed and remanded with instructions.
Medasys Acquisition Corp v SDMS PC. Seller of diagnostic medical equipment brought action against buyer for breach of contract and unjust enrichment after buyer refused to make payments on diagnostic nuclear imaging machine purchased from seller. Buyer counterclaimed seeking, inter alia, equitable rescission of contract and consequential and punitive damages. The Superior Court, Maricopa County, entered judgment upon jury verdict in favor of buyer, and court awarded buyer punitive and rescissory damages. Seller appealed. The Court of Appeals vacated award of punitive damages. Review was granted. The Supreme Court held that buyer's alteration of its position to its detriment, based on seller's fraudulent promises, served as actual damages predicate for purposes of recovering punitive damages on equitable rescission claim; overruling Hubbard v. Superior Court (American Alliance Life Insurance Co.) Court of Appeals' opinion vacated in part and remanded.
Meyerson v State of Arizona on Remand from the US Supreme Court. Handicapped psychology professor at state university brought action against State, State Board of Regents, and others, alleging that he had been victim of discrimination because of his handicap. The United States District Court for the District of Arizona held that professor failed to state cause of action under § 1983, and professor requested reconsideration of that decision; in addition, parties filed cross motions for summary judgment regarding claim under the Rehabilitation Act. The United States District Court for the District of Arizona entered judgment, and appeal was taken. The Court of Appeals affirmed. Professor petitioned for writ of certiorari, which was granted by the United States Supreme Court. On remand, the Court of Appeals held that in light of recent United States Supreme Court decision permitting maintenance of private Rehabilitation Act suit even if federal financial assistance involved does not have primary objective of providing employment, handicapped university professor's discrimination action would be remanded to the District Court for further consideration. Affirmed in part; reversed and remanded in part. Ferguson, Circuit Judge, concurred and filed opinion.
Meyerson v State of Arizona. Handicapped psychology professor at state university brought action against the state, state board of regents, and others alleging that he had been the victim of discrimination because of his handicap. The United States District Court for the District of Arizona held that professor failed to state cause of action under section 1983, and professor requested reconsideration of that decision; in addition, parties filed cross motion for summary judgment regarding professor's claim under the Rehabilitation Act. The United States District Court for the District of Arizona entered judgment, and appeal was taken. The Court of Appeals held that: (1) professor could not maintain action against state university under section of the Rehabilitation Act prohibiting discrimination against the handicapped; (2) professor did not have private right of action under section of the Act requiring affirmative action programs for employing the handicapped; and (3) professor could not maintain action under section 1983 based on violation of Rehabilitation Act.
Patterson v Bianco. Property owners brought action to force removal of defendants' lis pendens. The Superior Court, Pinal County, awarded property owners damages. Appeal and cross appeal were taken. The Court of Appeals held that: (1) interest which property owners lost on anticipated net cash proceeds for 28 days during which sale to third party could not go through because defendants had filed lis pendens constituted “actual damages;” (2) filing of lis pendens was groundless causing damage to property owners; and (3) property owners were entitled to prejudgment interest. Affirmed.
Pavilion Hotel Inc v Valley National Bank of Arizona. Hotel owner and service corporation filed complaint against bank seeking damages for breach of contract and declaratory relief after bank refused to unfreeze accounts which had been frozen pursuant to owner's filing of Chapter 11 petition, which was subsequently dismissed. Bank filed counterclaim and third-party complaint against secured creditor of plaintiffs and requested leave to deposit disputed funds with trial court and moved for discharge. Secured creditor filed answer to third-party complaint and complaint against plaintiffs. The Superior Court, Maricopa County, granted bank leave to deposit funds with court and entered order discharging bank from further liability. On creditor's motion for summary judgment, the Superior Court determined that creditor was entitled to disputed funds. Appeal was taken. The Court of Appeals held that: (1) creditor's security interest in all sums becoming payable due to operation of hotel included all future revenues from hotel operations; (2) funds representing postpetition payment of prepetition accounts receivable or sales of secured prepetition personal property were “proceeds” under the Arizona Uniform Commercial Code (AUCC); (3) funds representing payment of postpetition hotel room revenues were “rent” under Arizona law; (4) security interest in sums received for such goods or services were not “rent”; (5) dismissal of bankruptcy petition did not reinstate secured interest in liens avoided pursuant to bankruptcy cutoff provision; and (6) garnishee bank was not under obligation to institute litigation to provide resolution of competing claims. Affirmed in part, reversed in part and remanded.
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