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.

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.

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.

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