Berk & Moskowitz, P.C.

On April 22, 2010, a Maricopa County Superior Court jury unanimously awarded the firm’s clients $912,500 in a fraud case against the sellers of a Peoria, Arizona business.  Kent Berk tried the case on behalf of the clients, the buyers of the business.

After doing extensive investigation, the clients, John and Margaret Durma, signed a contract to buy The Curve on Peoria bar and restaurant for $375,000. The records provided by the seller appeared valid and confirmed that the business was making $160,000 in profit per year.  But, after taking over the operations of the business, it had losses each month. The Durmas suspected the seller of wrongdoing and investigated further. After filing their lawsuit, the Durmas discovered that the seller had created a second (false) set of financial records and that the business actually had losses each year that the seller owned it, all contrary to the seller’s repeated representations before the sale.

 At trial, Kent Berk, on behalf of the Durmas, presented claims for fraud, consumer fraud, bad faith, negligent misrepresentation and breach of contract.  Before the case went to the jury, the Judge granted the Durmas judgment as a matter of law on their breach of contract and negligent misrepresentation claims, and found that the seller was prohibited from pursuing any claims for the balance of the purchase price.

 The jury unanimously found in favor of the Durmas on their remaining claims – fraud, consumer fraud and bad faith, and unanimously awarded the Durmas $241,000 in economic damages, $196,500 in emotional distress damages and $475,000 in punitive damages.

In Horton v. Hartsook, et al., the Hortons brought suit to, among other things, stop Hartsook and several other owners from leasing their condominiums in Rainbow Cove, Pinetop Lakeside, Arizona on a short-term basis to vacationers.  Horton claimed that short-term vacation leases were prohibited by the covenants, conditions and restrictions for the development. 

Berk & Moskowitz defended the Hortons’ claims on behalf of the owners.  The Navajo County, Arizona Superior Court ruled in favor of the owners and found that short-term vacation leasing was allowed.  The Hortons appealed.  The Arizona Court of Appeals affirmed the trial court’s ruling.  The Court of Appeals concluded that the covenants were clear and unambiguous and that short-term vacation leasing was allowed in Rainbow Cove.

Read the Rainbow Cove Decision.

The Arizona Court of Appeals has ruled, for the first time in an Arizona published opinion, that an appraiser hired by a lender owes a duty to the buyer/borrower in that transaction.

In its Unanimous Decision issued April 30, 2009, the Court focused on the reality that the buyer would likely never hire a separate appraiser.  For that and several other reasons, the appraiser owes a legal duty of care to the buyer/borrower.  Daphne Reaume of Berk & Moskowitz, P.C. argued the appeal for the buyer/borrower.

The case opens the door for buyers to sue appraisers even when the appraiser was hired by the lender.  Visit our separate website, AppraiserNegligence.com for more information.

The Ninth Circuit upheld summary judgment in favor of our client on his claim to retirement benefits.  Click here for the Ninth Circuit Court of Appeals  Memorandum Decision. Click here for the District Court Order.

The issue on appeal involved an option to purchase under a residential lease and whether it had been timely exercised. The Arizona Court of Appeals affirmed the trial court’s decision in favor of Berk & Moskowitz’ client

Berk & Moskowitz, P.C. represented the seller of a home under an option to purchase given to the tenant/buyer. The trial court found in favor of the seller, finding that option contracts are strictly construed and that the buyer did not timely and properly exercise the option contract.  The buyer appealed. The Arizona Court of Appeals affirmed the trial court decision for the sellers. 

Read the Court’s Memorandum Decision.

After trial, Superior Court Judge Paul A.Katz found that the firm’s clients were not liable on a commercial lease.  The landlord tried to hold the tenant’s owners liable for the lease based on theories of alter ego and piercing the corporate veil.  Download the Decision.

The issue on appeal was one involving the construction of a commercial lease.  In favor of Berk & Moskowitz’ client, the tenant, the Arizona Court of Appeals reversed the trial court’s decision.

The tenant hired Berk & Moskowitz after the trial court had ruled that the tenant did not have the right to cancel a commercial office lease.  Berk & Moskowitz filed an appeal for the tenant.  The Arizona Court of Appeals reversed the trial court, interpreted the lease as a matter of law and found that the tenant did have the right to cancel the lease.   The tenant recovered its security deposit, costs, attorneys’ fees and interest.

Read the Court’s Memorandum Decision.

United States District Court Judge John W. Sedwick found in favor of the firm’s client against Travelers Property Casualty Insurance Company for failing to honor an assignment of insurance proceeds.  The firm represented an insurance adjuster who had received a partial assignment of proceeds from his client, the insured.  The insurance company had refused to honor the assignment.  Read the Decision

Judge Helene Abrams found in favor of Berk & Moskowitz, P.C.’s client, the sellers of three investment properties, and ruled that the buyer had breached the contracts.  The trial court found that the sellers were entitled to recover only the earnest money actually deposited into escrow.  The Court of Appeals partially reversed and found the buyers liable for the full amount of earnest money as liquidated damages.  Read the  Superior Court Ruling and  Court of Appeals Decision

Hendricks v. Steed involved a dispute over a verbal contract for Hendricks’ purchase of a roof-tile manufacturing company. Hendricks sued Steed and Steed’s non-profit, charitable foundation, Heritage Institute, in an Arizona court, alleging among other things, that the contract was illegal because Heritage was violating federal tax laws. The trial court entered summary judgment against Steed finding that “if there was a contract, it was illegal because it contravened federal law.”

Berk & Moskowitz appealed the judgment on behalf of Steed. The Arizona Court of Appeals reversed the trial court’s judgment against Steed, holding that obligations to comply with federal statutes were not within the scope of the contract, thus, the alleged violations, in and of themselves, could not render the contract itself illegal. Rather, a contract is illegal only “if the acts performed under the contract themselves are illegal.”

Read the Steed Memorandum Decision