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
John Impellizzeri (the firm’s client) was the Plaintiff and Kenneth Sloniger was the Defendant in a lawsuit brought by Impellizzeri for Sloniger’s misrepresentations and errors in selling Impellizzeri certain life insurance. Sloniger’s insurance company defended him in the claims, but reserved rights to deny coverage. Because of the reservation of rights, Sloniger was partially released from his duty to cooperate with the insurer and entered a stipulated judgment in favor of Impellizzeri.
Impellizzeri then attempted to enforce the stipulated judgment against Sloniger’s insurance company. Judge Anna Baca found in favor of Impellizzeri and allowed him to enforce the judgment against American Automobile Insurance Company, but only to the extent that the stipulated judgment represented a reasonable settlement of the claims against Sloniger. View the Superior Court Ruling.
In this case, the firm’s client purchased a home in North Scottsdale. Unbeknownst to her, the home had been used by the sellers to breed and kennel large numbers of dogs over several years. Upon moving into the home, the buyer’s daughter and grandson had severe allergic reactions. They subsequently discovered that the home was used to breed dogs, but that fact was not disclosed before the sale.
Berk & Moskowitz, P.C. filed a lawsuit in Maricopa County, Arizona Superior Court against the sellers and their agent, Century 21. After trial, Judge Peter Reinstein found in favor of the buyer and assessed 95% of the fault to Century 21 for not disclosing the history of the home. The Judge awarded the seller full diminution in value caused by the prior use. Read the Ruling.
This case involved the liability of an Arizona couple’s marital community under a contract that was subject to Georgia law. In the case, a Georgia husband (Ogle) and an Arizona husband (Richmond) executed a contract in Georgia, that was to be performed in Georgia, and that specified it was to be governed by Georgia law. The parties subsequently sued each other, and their wives, in Arizona. Berk & Moskowitz represented Ogle at trial.
The trial court dismissed the claims against Ogle’s wife because Georgia is not a marital community property state. Richmond’s wife then moved to dismiss the claims against her, arguing that the contract was governed by Georgia law, therefore, Georgia law should govern the Richmonds’ marital community rights and liabilities as well. The trial court agreed and dismissed Richmond’s wife from the case, but refused to enter final judgment against her at that time. The case proceeded to trial (in the absence of Richmond who failed to appear) without further input or defense from Richmond’s wife, and a judgment for $1,037,060 was entered in favor of Ogle against Richmond.
On behalf of Ogle, Berk & Moskowitz appealed the dismissal of Richmond’s wife. The Arizona Court of Appeals reversed the trial court’s dismissal of Richmond’s wife, holding that, notwithstanding the choice of law provision in the contract, Arizona law governs the obligations of marital communities domiciled in Arizona. The Court of Appeals reasoned that applying Georgia law to immunize the Richmond’s marital community from liability “would effectively abrogate” Arizona’s community property laws, and particularly A.R.S. § 25-215(c), which provides that “community property is liable for a spouse’s debts incurred outside of this state during the marriage which would have been community debts if incurred in this state.”
The court of appeals further ordered that, on remand, Richmond’s wife was entitled to dispute whether, or to what extent, the Richmond’s marital community was liable for Richmond’s debt, but that she could no longer dispute the debt itself.
Read the Court of Appeals Memorandum Decision
In this case, Berk & Moskowitz, P.C. represented the buyers in a real estate fraud and misrepresentation case against the seller/builder/developer, Jackson Properties. Before buying the home, the seller’s agent represented that a nearby dairy would be closed, such that the buyers did not need to be concerned about flies, smells and other offensive conditions. Based on those representations, the buyers purchased the home.
Later, the buyers discovered that the dairy owner had no plans to close and that the seller’s agent knew that fact. Berk & Moskowitz filed suit on behalf of the sellers for consumer fraud, negligent misrepresentation and fraud, and sought rescission -to undo the entire deal and obtain a refund of the buyers’ payments in connection with the property.
The Maricopa County, Arizona Superior Court Judge, Kenneth Mangum, found for the buyers and awarded full rescission and emotional distress damages.
Read the Ruling
