News Highlights 2008 and 2009
Gordon & Simmons wins appeal in Maryland Court of Special Appeals and court doubles original award
• On December 2, 2009, Gordon & Simmons, Roger C. Simmons and Matthew S. Johnston for the firm, prevailed before the Maryland Court of Special Appeals in an appeal of the Montgomery Bankers, Inc. v. Montgomery Distributors, Inc. which was a case that Roger C. Simmons had won in April of 2008 for $654,000. In a 94 page unreported opinion written by Judge Hollander of the Court of Special Appeals, the Court upheld the judgment, agreeding with nearly each argument posited by Gordon & Simmons on behalf of Montgomery Bakers. Significantly, the Court of Special Appeals found that the trial court had erred by reducing the requested damage award at trial to $654,000 from the requested $1,308,000, vacated that judgment and ordered the trial court to increase the damage award to the original amount requested, over $1.3 million. The case is titled Fischer v. Montgomery Bakers, Inc., Case No. 0380 of September 2008 Term.
| December 2009 |
Gordon & Simmons fends off a challenge to an estate in Montgomery County
• Jacob I. Weddle successfully defended a Personal Representative who disallowed a $57,000 claim against an estate. During an October 2009 evidentiary merits hearing in the Circuit Court for Montgomery County, Mr. Weddle used the Claimant’s own testimony to prove that the claim was time-barred. Mr. Weddle also invoked the Dead Man’s Statute to preclude the Claimant from testifying to basis for the claim. As a result, the remaining estate was distributed to the decedent’s chosen charity – Doctors without Borders.
| October 2009 |
Shawn and Roger assist Dewey Jordan, Inc. stockholders to obtain $825,000 for a stock redemption
• During the month of October, 2009, attorneys Shawn Cavenee and Roger Simmons were successful in obtaining a stock redemption for two Dewery Jordan, Inc., shareholders which produced $825,000 in cash for our clients in less than a month in a matter that had been stalled for more than two years before we were asked to become involved.
| October 2009 |
Summary Judgment Granted to Creditor Investor for Approximately $3,000,000 Stephen J. Garchik et al. v. Stelor Productions, LLC et al. (Case No. 307631-V)
• On August 12, 2009, Judge Durke G. Thompson of the Montgomery County Circuit Court entered judgment in favor of Plaintiffs for almost $3,000,000 in principal, which amount will exceed $3,000,000 once attorneys fees and interest are determined by the Court. Plaintiffs invested approximately $3,000,000 in Defendants’ internet, start-up business, which operated its on-line business under the domain name googles.com. Due to Defendants’ default under the loan documents and the Courts grant of summary judgment, Plaintiffs now own the legal rights to Defendants’ business assets, collateral and intellectual property, including the domain name googles.com.
| August 2009 |
• The firm recently represented a major real estate developer in West Virginia against a major house builder in the Maryland – West Virginia area in a breach of contract action, resulting in a successful settlement of more than $900,000 for the client.
| Summer 2009 |
• On August 13, 2009, Gordon & Simmons (Roger Simmons and Matthew Johnston for the firm) won dismissal of a copyright action in the United States District Court for the District of Maryland. The case was a suit brought by a Pickle Partners, the purported copyright holder of artwork that Coin X Change had used in the conduct of its business. The principles of Pickle Partners had brought other suits against the owner of Coin X Change, LLC in other courts. In October, 2008, when counsel for Pickle Partners withdrew from the case, the Court ordered Pickle Partners to obtain new counsel, which Pickle Partners failed to do. After Gordon & Simmons moved for the dismissal of the case for failure to follow a Court order, the owners of Pickle Partners attempted to circumvent the Court’s order by substituting themselves as individuals Plaintiffs in order to proceed pro se. The Court denied the attempted substitution and then dismissed and closed the case. The case is Pickle Partners, LLC v. Coin X Change, LLC, case No. 08-cv-01761.
| August 2009 |
• In August of 2009, Roger Simmons appeared in Montgomery County Circuit Court as lead counsel in a matter involving an insurance broker client seeking an emergency Temporary Restraining Order requiring the return of files wrongfully taken by a departing insurance agent. The Court’s Judge Boynton granted the relief requested by Mr. Simmons’s client.
| August 2009 |
• The firm’s client, a local ticket broker, was dismissed from a North Carolina Federal Class Action ticket scalping suit seeking more than $5,000,000 in damages. Asserting a vigorous defense, Roger C. Simmons and Jacob I. Weddle negotiated the dismissal of their client from a class action suit originally brought in the North Carolina state court system. Mr. Simmons and Mr. Weddle removed the suit to the North Carolina federal court system under the Class Action Fairness Act by arguing that the amount in controversy of the class action suit surpassed $5,000,000. After removal, the Plaintiff class agreed to dismiss the defendant ticket broker, with prejudice, for no fee — eliminating the local ticket broker’s multi-million dollar exposure.
| 2009 |
• The firm’s Jacob Weddle represented a small, local wire and metals dealer in a Federal trademark infringement suit filed against it by North America’s leading manufacturer of wire and cable. Mr. Weddle negotiated an amicable settlement in which the client modified its logo, but retained the use of its established tradename.
| September 2009 |
• During 2008, the firm settled a Federal District trademark infringement case its attorney, Roger Simmons, had brought against a Florida entity that was using the name and mark owned by Frederick-based Gutters For Less, and the monies paid by this Florida infringer to the firm’s client were finally all collected.
| 2008-2009 |
• During the closing months of 2008, Roger Simmons tried a case against a District of Columbia resident, in estate of Frances W. Johnson v. Charles E. Joyner, before the Superior Court of Washington, D. C., Case No. 2007 CA 003758 B, Judge Maurice Ross. The plaintiff, Estate of Frances W. Johnson, filed a Petition seeking partition by sale of property located in Washington, DC 20019, in which the Estate sought a determination by the Court that it held property as Tenants in Common with the defendant, Charles E. Joyner, who claimed to own it in its entirety. In early 2009, the firm learned that it had won the case for the estate and also obtained an award of attorneys’ fees in an opinion by Judge Ross.
| End of 2008 |
We succeeded in enjoining Rent-A-Wreck of America Inc. from terminating the franchise operated by its founder, David Schwartz.
• In August 2007 Gordon & Simmons obtained a Temporary Restraining Order from the United States District Court for the District of Maryland, Judge Peter Messitte, in the case entitled David Schwartz, et al. v. J.J.F. Management Services, Inc., Case No. 07-CV-01679. On September 17, 2008, attorneys Roger C. Simmons and Jacob I. Weddle, won in a full preliminary injunction halting Rent A Wreck of America, Inc.’s effort to terminate its very first franchisee. Dave Schwartz, the man who originated the Rent A Wreck name in 1973, owned its first franchise and was the founder of Rent A Wreck of America, Inc., was held to have a unique relationship with the national company. Described as Rent A Wreck’s first franchisee but paying no franchise fees, the injunction entitles Schwartz and his Los Angeles-based company to inclusion in the national franchising company’s website on a parity with other franchisees. John J Fitzgerald, a millionaire Maryland car dealer, and the man who recently bought Rent A Wreck of America, Inc. has been quoted as having attempted to terminate Mr. Schwartz “to see how high he jumps.”
| September 2008 |
Ruling on the Jan Pottker, et al. v. Kenneth J. Feld, et al. motions for summary judgment
Judge Rules on Key Motions in Circus Case:
• On August 14, 2008, the Honorable Brook Hedge for the Superior Court for the District of Columbia Superior Court’s civil division ruled on motions that had been pending for several years, clearing a path for the almost nine-year-old case, Jan Pottker, et al. vs. Kenneth J. Feld, et al., to go to trial. The Court ruled that Jan Pottker had presented evidence leading to “undisputed facts [that] form a sufficient basis to deny judgment to the defendants on all of the counts brought by Pottker and WCI [her writing company] against the Feld defendants.” These undisputed facts are the following:
(1) [Kenneth] Feld did not want Pottker to write about his family or the circus;
(2) Feld wanted Pottker diverted from writing about the circus;
(3) Feld contacted [Clair] George [former Deputy Director of (covert) Operations at the Central Intelligence Agency] to commission the writing of a favorable book about the circus to be used if Pottker appeared able to publish her proposed book on the circus;
(4) George, with Feld’s knowledge, consent and money, hired [Robert] Eringer to carry out the twin goals to see to the production of the shadow book and to divert Pottker from writing about the circus;
(5) Eringer sought out and befriended Pottker to obtain information about her writing and plans to secure her trust as to his value to her in the publishing world so that he could provide information to Feld;
(6) Eringer reported his information and findings to George through memoranda and dixcussions;
(7) Eringer received the money he needed to carry out plans to divert, such as securing the money from Feld entities to partner with National Press Books to co-publish the Mars family book, Crisis in Candyland, by providing PPB the money that went for Pottker’s advance and securing the right to edit the book, but all in confidence with NPB without Pottker’s knowledge;
(8) Eringer entered into a written agreement with Pottker to publish Celebrity Washington, but made editorial suggestions that, under any reasonable interpretation, were designed, at best, to impede or delay the publication; and
(9) Eringer had to listen to “all of Pottker’s life plans” because he was paid to do that.
| August 2008 |
| Dirty secrets under the big top | August 13, 2008 |
| Stranger than Fiction: Ringling’s CIA Spy Headed to Court article on Blogs.cqpolitics.com
| August 15, 2008 |
A Maryland Jury Finds Fraud in the Home Mortgage Market
• On July 31, a civil jury in Montgomery County, Maryland, Kimberly Thomas v. Wells Fargo Bank, N.A., Civ. No. 279370-V, rendered a verdict for $1,250,000 in damages ($250,000 compensatory and $1,000,000 punitive) against Wells Fargo Bank, N.A., for defrauding a home buyer who was seeking a mortgage loan. Wells Fargo Bank, N.A., made an excessive loan at a higher than promised interest rate to Ms. Kimberly Thomas. In the course of the loan approval, Wells Fargo Bank, N.A., was found to have engaged in fraudulent activity by misrepresenting income and assets of Ms. Thomas in order to justify a loan that she could not afford and could not repay in order to earn a commission on the transaction.
• In conducting its deliberations, the jury was provided evidence from which it could find that Wells Fargo Bank, N.A., did not comply with its own consumer mortgage loan policies, its own ethical standards and requirements and abused its position with respect to commonly used banking practices governing loan standards in the consumer area.
• Representing Ms. Thomas in the trial was Roger C. Simmons.of the Frederick, Maryland law firm of Gordon & Simmons, LLC.
• Subsequent to the entry of the jury’s verdict, the trial court reduced the verdict from $1,250,000 to $250,000. The trial court’s reduction of damages has recently been appealed.
| July 2008 |
| Jury vindicates a homebuyer done wrong by her lender | Baltimoresun.com | August 2008 |
| Business Journal Article | Baltimore Business Journal | August 2008 |
Montgomery Bakers v. Montgomery Distributors
• Roger Simmons won a judgment following a four day judge trial in Montgomery County Circuit Court in March 2008 before the Honorable Judge Dugan for shareholders, Sheldon Fischer and Ann Fischer, and their company, Montgomery Bakers, Inc., against two other shareholders of Montgomery Bakers and their separately owned company, Montgomery Distributors, Inc, for $654,000. The basis of the award was an equitable adjustment for wrongful taking of corporate assets.
| 2008 |