DCSTB Partner Tom Connick Successfully Defends Real Estate Appraiser In Alleged Million Dollar Civil Conspiracy And Consumer Fraud Case
On August 17, 2011 DCSTB Partner, Tom Connick, went to trial in a case that had been pending and litigated since 2006, wherein Tom’s client, a professional real estate appraiser, was accused of participating in a predatory lending/flipping scheme, that allegedly damaged Plaintiffs in excess of one million dollars. After approximately five (5) days in trial, Tom successfully convinced the trial court to grant his client a directed verdict, i.e. dismissal, on all claims. After hearing arguments of counsel, the trial court agreed with Tom and dismissed all counts alleged against his client. The Plaintiffs appealed. Just recently, on June 21, 2012, in the case of U.S. Bank, Etc., Et Al. v. Cynthia Amir, ET Al, Slip Copy, 2012 WL 2355620, 2012-Ohio-2772, Ohio App. 8 Dist., June 21, 2012 (97438), the Ohio Eighth District Court of Appeals affirmed the trial court’s ruling in favor of Tom’s client. This is a significant Appellate victory for Tom’s client, as Plaintiffs had made a demand and alleged damages for over One Million Dollars. And, in fact, other Defendants in this case were deemed liable for over 1.8 Million Dollars. Notably, however, both at trial and on appeal, Tom successfully presented arguments showing that his client did not participate in the alleged fraudulent real estate scheme, whatsoever. This case is also significant for outlining Ohio case law related to alleged real estate appraiser liability in the context of the Ohio Consumer Sales Practices Act, Fraud and Civil Conspiracy.
Congratulations to Tom on another job well-done!!
One of the guiding principles under which DCSTB is founded, is to always provide our clients with uncompromising, zealous and unsurpassed high quality legal services and counsel. Congrats to Tom Connick for being recognized by one our clients (see below) for doing just that in reaching a successful outcome. Nice job, Tom!!
Thank you for getting this done. In many years of business, law enforcement and personal life I have never met a lawyer who was as solid as you. You did not not budge, you held the Defendant to the fire; and on both cases settling was a matter of economics not admitting defeat.
I would recommend you in a heartbeat to colleagues and while I hope we don’t have to work together again I would not hesitate to contact you when in need.
Dennis W. Matson
Congratulations to DCSTB Partner Tom Connick and Associate Anthony Trzaska in persuading the 8th District Court of Appeals to affirm the underlying Trial Court’s Order granting DCSTB Client, the City of Cleveland, Summary Judgment in a toxic tort/premises liability case. Plaintiff/Appellant, Thomas Kruzer, alleged that he contracted Legionnaire’s Disease while working at Thrifty Rent-A-Car, located on City property at the Cleveland Hopkins International Airport. Mr. Kruzer alleged that the City failed to properly maintain its HVAC system, which caused him to contract Legionnaire’s Disease. However, Tom and Anthony successfully argued that Mr. Kruzer failed to present any evidence that the alleged legionella bacterium was present at the City property, or that he contracted the disease while working at the City property. The Court further expressly held that Plaintiff/Appellant’s argument that he could rely upon the doctrine of res ipsa loquitor in order to prevail on his negligence claim, lacked merit as a matter of law. The Appellate Court Opinion in Alan E. Kruzer, et al. v. City of Cleveland, et al. (8th Dist. C.A. 97168) can be found here. Congratulations Tom an Anthony!!
DCSTB recently settled a bad faith insurance claim on the eve of trial for $3,750,000 against one of the largest insurance carriers in the world. Rob Dubyak’s corporate client initially approached him with a $22,000 commercial property damage claim for the client’s building. When the insurance company improperly investigated the claim, delayed payment of benefits, and refused to pay Rob’s client what was owed under the insurance policy, the firm filed suit for bad faith denial of benefits. Led by the efforts of Tom Connick, who has over 15 years of insurance law/litigation experience, the firm fought for our client for over two years of intense litigation. Tom and Rob took over 20 depositions, including those of claims adjusters, insurance and damage experts, and the insurance company’s claims executives. The extensive work of DCSTB exposed the inexcusable breach of contract and bad faith of the defendant. Although the insurance company maintains that it was not liable, it ultimately agreed to pay DCSTB’s client a multi-million dollar settlement. In total, DCSTB recovered approximately $4,400,000 for the client.
The case combined over 35 years of litigation experience of these two DCSTB partners. The firm was able to develop the necessary strategy to protect the client’s commercial property interests, while at the same time masterfully analyzing the insurance policy to make sure that the insurance company paid our client’s substantial damages, including for the interruption in her business and lost profits. Tom Connick focuses a large part of his practice on representing both insurers and policyholders in a variety of insurance-related legal issues, including bad faith litigation. Rob Dubyak represents many commercial property owners and has extensive commercial litigation experience and expertise in helping them in all aspects of transactions and litigation. The combined expertise of DCSTB’s attorneys make the firm uniquely suited for handling such complex litigation matters.
Congratulations to Tom and Rob on this phenomenal result for our client.
Whether you are an insurer or a policyholder, if you have any insurance law issue, including claims of bad faith denial of benefits, that requires legal counsel, you can contact Tom Connick directly at (216) 364-0502 or firstname.lastname@example.org. If you need assistance with any other commercial or litigation matter, you can contact any of the attorneys at DCSTB at (216) 364-0500.
Congratulations to DCSTB Partner Tom Connick who, along with colleague and co-counsel Edward W. Cochran, recently received Final Approval of a Class Action claim against Enterprise Rent-A-Car and its subsidiary companies, brought on behalf of their client, Robert Wittbrot. In September 2008, Mr. Wittbrot, while driving a rented a car from Enterprise, was identified by a red light photo enforcement program as having run a red light. A citation was sent automatically to Enterprise as the registered vehicle owner. Before notifying Mr. Wittbrot, Enterprise automatically paid the $100.00 ticket by charging the amount to Mr. Wittbrot’s credit card, along with an additional $20.00 administrative fee. On November 13, 2008, Mr. Wittbrot received a letter from Enterprise (dated November 7, 2008) notifying him of the citation and the amount of the charges. The payment and timing of the notification did not allow Mr. Wittbrot to challenge the validity of the citation.
Enterprise’s actions violated Ohio Revised Code § 4511.092 by failing to notify the issuing authority of the name and address of the person renting the car at the time of the violation, and by unilaterally paying the ticket and charging Mr. Wittbrot an additional administrative fee of $20.00. Although Enterprise denied all liability, it agreed to a 100% refund to all Class Members who were charged the unlawful administrative fee, and further agreed to injunctive relief, which includes Enterprise agreeing to indefinitely stop charging any more administrative fees associated with camera citations. Except in very limited circumstances, Enterprise further agreed to no longer pay the citations issued to it, but instead to put the issuer of the citation on notice of the name and address of the violating renter.
Enterprise was also required to pay costs, Court approved attorney fees and a Court approved incentive fee to Mr. Wittbrot for his role in successfully challenging Enterprise’s improper practices and procedures.
If you feel that your rights and the rights of those similarly situated with you have been violated, and you want to serve as a Class Representative in a Class Action, please contact Tom Connick directly at (216) 364-0502 or email@example.com for a free consultation.
The Summit County Court of Common Pleas decided last Friday to certify a class action brought by Tom Connick on behalf of a group of residents of a mobile home park who were charged excessive fees for natural gas by the owners of the park since the 1990′s. The Judge rejected arguments by the park owners that there were too many differences between the class members, such as their length of residence or whether they were current on rent to the park, to allow the case to be handled as a class action. The court held that the Plaintiff satisfied all elements under Civil Rule 23 for certification, and that the case would move forward as a class.
I represent an appraiser who was accused of inflating the value of a home in Cleveland to secure a mortgage. The home was subject to foreclosure, and the homeowner sued several parties, including my client, alleging that the parties were involved in a predatory lending scheme. Although my client appraised the home at its proper market value, he was sued for fraud, civil conspiracy, violation of the Ohio Corrupt Practices Act (Ohio’s version of the federal RICO Act), and violation of the Ohio Consumer Sales Practices Act.
After over five years of discovery and motion practice, the case went to trial last week. I successfully persuaded the Court to exclude evidence and testimony offered by the Plaintiff, including the testimony of Plaintiff’s expert appraiser, who failed to provide an opinion of a comparative market value of the subject house as of the date my client performed his appraisal. Without such comparative evidence, I argued, the expert’s opinion had no evidentiary value. The Court agreed. I also established through four days of cross-examination of the Plaintiff’s witnesses that there was no evidence to support the claims against my client.
At the close of the Plaintiff’s case, the trial judge granted my motion for a Directed Verdict, holding that my client was entitled to a judgment as a matter of law. Under Ohio Civil Rule 50, the judge evaluated all of the evidence presented in a light most favorable to the Plaintiff. Even under that standard, it was held that a reasonable jury could only find in my client’s favor.
I will continue to handle this case through any appeal.
I defend property appraisers on a regular basis. One of the issues that always arises in cases alleging negligence against an appraiser is the applicable statute of limitations and the date the injury accrued. Until recently there has been a conflict of opinions within Ohio’s appellate districts as to when a claim for negligence accrues related to the professional negligence of a property appraiser. The Ohio Supreme Court just resolved that conflict in the case of Flagstar Bank, F.S.B v. Airline Union’s Mortgage Company, et al, Slip Opinion No. 2011-Ohio-1961.
In 2008, Flagstar Bank sued an appraiser who, in 2001 and 2002, issued appraisals on three properties for a non-party bank that later sold the properties to Flagstar. These properties went into foreclosure during the recent real estate debacle currently plaguing the country. In resolving the conflict in Ohio as to when an action for professional negligence against appraisers accrues, the Ohio Supreme Court held in Flagstar that “[a] cause of action for professional negligence against a property appraiser accrues on the date that the negligent act is committed, and the four-year statute of limitations commences on that date.”
Notably, the court expressly rejected the “discovery-rule” and the “delayed damages rule.” Under these rules, a plaintiff’s action does not accrue, and the statute of limitations does not begin to run, until the plaintiff knows, or reasonably should have known, that he or she has been injured by the conduct of the defendant (discovery rule), or has actually incurred damages to complete the elements required to bring a cause of action for negligence (delayed damages rule). Now, under Ohio law, a professional negligence claim against an appraiser accrues, and the four-year statute of limitations commences, on the date the appraiser performs any alleged negligent appraisal work.
Recently, the Ohio Eighth District Court of Appeals ruled in favor of my client, The City of Cleveland Department of Port Control, dismissing a slip and fall case brought by a woman who fell in a puddle of water in the open air parking garage adjacent to the Cleveland Hopkins International Airport terminal. The woman claimed that she was distracted by other pedestrians as she entered the Airport, and therefore did not notice the puddle. During her deposition, however, the woman admitted that she saw the puddle of water and even tried avoiding it because she knew she could slip and fall. The trial court dismissed the claim under Ohio’s “Open and Obvious” Doctrine, which holds that a property owner has no duty to protect people from dangers that are so obvious and apparent that they may be expected to discover them and protect themselves. Plaintiff appealed the trial court’s ruling, alleging that her claim was not barred by the Doctrine because of “attendant circumstances,” which in this case she alleged were the other patrons who distracted her attention. The appellate court disagreed, holding that “[t]he evidence in the present case does not support a finding of attendant circumstances. Rather, the evidence demonstrates that it was O’Brien’s own disregard of the condition, after observing the puddle and appreciating the potential risk of falling if she walked through it, that resulted in her fall.”
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