A significant victory in a hard-fought case against an implacable and well-financed opponent was recently achieved on March 10, 2015, by the firm (Roger Simmons & Jake Weddle) in David Schwartz, et al. v JJF Management Services, Inc., et al., Case No. 13-2189, before the United States Court of Appeals for the Fourth Circuit. See opinion. In the 1970s, David Schwartz, the firm’s client, created and founded a revolutionary rental car system that later became Rent-A-Wreck of America, Inc. In 2006, Rent-A-Wreck of America, Inc. was purchased by local car dealer and businessman, Jack Fitzgerald, who, in one of its first acts, directed the company to terminate the rental car franchise of its founder, David Schwartz, “just to ‘see how high [Schwartz] jumps.” After two jury trials and two wins by David Schwartz, Rent-A-Wreck of America, Inc. launched a second appeal to the Fourth Circuit. This second appeal led to a unanimous opinion by the Court in Schwartz’s favor, holding that the District Court “rightly rejected” Rent-A-Wreck of America, Inc.’s attempts to undo the express and/or implied-in-fact contracts formed over forty years of history favoring Schwartz in the operation of his business within an exclusive territory in Los Angeles, California. David Schwartz now enjoys a Rent-A-Wreck franchise whereby he pays no fees to the national company and may operate in his exclusive territory in Los Angeles for the rest of his life.
Shawn Cavenee and Chris deBettencourt, representing a commercial property owner in a breach of contract action, prevailed on a Motion for Summary Judgment in the Circuit Court for Harford County. Gordon & Simmons represents the manager of a retail shopping center in an action against a former tenant and two individual guarantors. In the landlord-tenant action, the Harford County Circuit Court granted summary judgment in favor of the firm’s client against two of three defendants on claims for breach of contract and breach of guaranty. Shawn and Chris secured a judgment for $225,530.16 for its client. On summary judgment, and despite objection from the Defendants concerning the amount of damages, Shawn and Chris successfully enforced a treble damages provision in the underlying lease agreement, dramatically increasing the damage award to its client. Gordon & Simmons also prevailed on the summary judgment motion filed by a third Defendant in the case, and Chris and Shawn are set to try the remaining claims on February 11, 2015.
Gordon & Simmons was retained in October by a Montgomery County entrepreneur who was unable to obtain a permit to open a small business in the City of Frederick. In addition to retail sales, Victoria Frank, a small business owner, proposed to perform psychic readings at a planned shop within the city limits, but was not able to obtain a permit. A city ordinance made it a civil infraction to perform readings within the city for a fee. Gordon & Simmons reached out to the city government on behalf of its client and requested the City reassess the constitutionality of City Code Ordinance §15-19 – an archaic statute that prohibited receiving a fee for services relating to “clairvoyance, mind reading, palmistry, phrenology, divination or other [psychical] means or pretense of fortunetelling” within the Frederick City limits. The ordinance raised First Amendment issues and, in fact, based upon initial research by Shawn Cavenee and Chaz Remus, the firm quickly learned that a similar ban in Montgomery County had been ruled unconstitutional by the Court of Appeals in 2010 in its ruling in the case of Nefedro v. Montgomery County, Maryland, et al. On November 20, 2014, the Mayor and Board of Alderman of Frederick voted unanimously in favor of repealing the statute, thereby eliminating the restrictions on Gordon & Simmons’ client and all entrepreneurs who wish to conduct similar business in the City of Frederick.
The firm, led by Roger Simmons, is representing David Lerner, a resident of New York, in pursuing a Complaint filed recently in the United States District Court for the Eastern District of New York. Lerner is suing multiple defendants for their alleged refusal to pay him significant monies, and to convey an ownership stake to him for his efforts to acquire the rights to, and to raise capital for, a new regional restaurant venture. Lerner was instrumental in introducing two high-profile individuals in the restaurant industry, Hugh Connerty and Chris Sullivan to the Besito restaurant originally based in New York and Connecticut. Lerner played a significant role in efforts to acquire the rights to market and expand the Besito restaurant brand and to raise capital for the expansion efforts. Indeed, the effort to expand Besito is well underway.
Connerty is credited with originating the Longhorn Steakhouse concept, was instrumental in the growth of the Hooters restaurant chain, was the original franchisee of Outback Steakhouse, and is a former president and managing partner of Outback Steakhouse International. Sullivan is the founder, former chairman and CEO of Outback Steakhouse and was also involved in the Steak and Ale and Bennigan’s restaurant chains. Additional defendants in the case include Consul Partners, LLC and Besito, LLC.
Besides their client’s contract claims, Gordon & Simmons’ client has asserted claims against the defendants ranging from defamation and trade disparagement, to fraud, and tortious interference.
Shawn Cavenee and Chaz Remus of Gordon & Simmons recently represented two individuals in their efforts to continue to operate their family-owned dog boarding business at their personal residence in Union Bridge. In early 2014, the clients, who operate 4 Bare Paws Doggie Camp in Frederick County, received a notice from local zoning authorities stating that their business was not in compliance with the Frederick County Zoning Ordinance. The property was nearly three acres short of the minimum lot area requirement applicable to kennel operations, and fencing on the property was subject to a number of setback provisions.
Shawn and Chaz applied for a Special Exception and Variance on behalf of their clients to allow the dog boarding business, the sole source of income for the clients, to continue to operate in their agricultural zoned district despite these deficiencies. After two hearings with the Frederick County Board of Appeals, Shawn and Chaz were able to narrow the issues to just the minimum lot area requirement. Despite this hurdle, the Board of Appeals followed Shawn and Chaz’s arguments that the business was the most economically efficient use of the property and unanimously approved the clients’ applications for a Special Exception and Variance. Shawn and Chaz will be continuing to work with 4 Bare Paws Doggie Camp to gain the necessary site plan and health department approvals and to bring the operation into compliance with Frederick County regulations.
Video of the firm’s presentation to the Frederick County Board of Appeals can be found on the Frederick County government website: http://frederick.granicus.com/MediaPlayer.php?view_id=5&clip_id=4654
Gordon & Simmons has been retained by Frederick County school activist Cindy Rose to take up her challenge to annual mandatory assessment testing in Maryland public schools. Shawn Cavenee and Chris deBettencourt entered their appearance as lawyers for Rose in her declaratory judgment action against the Frederick County Board of Education, where she is seeking a judicial declaration confirming a parent’s right to refuse to allow testing of his or her child. Beginning in third grade, students attending Maryland public schools are subject to annual assessment testing. The assessment testing is intended to comply with requirements of the federal No Child Left Behind Act and to incorporate new Common Core curriculum standards. Rose initially filed the action as a pro se litigant when Frederick County Public Schools sought to bar Rose’s middle school daughter from attending school during the testing period after she refused to participate in testing in March 2014. Gordon & Simmons has just recently entered its appearance and filed an opposition to a summary judgment motion filed on behalf of the school system.
Shawn Cavenee recently succeeded in achieving a settlement exceeding $100,000 for a client in a personal injury case who was injured while driving a company vehicle. The at-fault motorist had policy limits of only $30,000 to compensate the injured client. Shawn Cavenee pursued his client’s employer’s uninsured/underinsured motorist coverage in order to achieve a settlement that fairly compensated the client for his injuries.
Gordon & Simmons Represents Residential and Commercial Landlords and Tenants in Various Lease Disputes
Shawn Cavenee and Jake Weddle are currently representing and/or have recently represented both landlords and tenants in commercial and residential lease disputes relating to:
- Security Deposits
- Tenants Holding Over
- Tenant Rent Escrow Actions, and
- Damage to Leased Property
A husband and wife came to the firm facing a six-figure deficiency judgment stemming from the foreclosure of a family home several years prior. Jake Weddle formulated and implemented a cost-effective and efficient defense strategy that successfully rebuffed Dyck-O’Neal, Inc.’s attempt to collect more than $100,000 that it was not legally owed.
Jacob (“Jake”) I. Weddle has continued his run as one of a select few notable young lawyers in Maryland. Super Lawyers magazine for 2015 has recently been published, and Jake, as was the case for 2012, 2013 and 2014, has been identified as a Rising Star in the area of Civil Litigation-Defense.
Candidates for consideration to be singled out for recognition by Super Lawyers are nominated by their peers for consideration by Super Lawyers, subjected to independent third-party review by an attorney-led research team and then evaluated in categories organized by practice area by their fellow lawyers. According to Super Lawyers magazine, only 2.5% of attorneys are selected as Rising Stars.
This is the fourth consecutive such honor for Jake, and his partners and colleagues at Gordon & Simmons are proud of his achievement.