News Highlights

G&S Prevails on Motion to Dismiss Filed by Former Outback Steakhouse Executives in New York

A federal district court in New York has held that commercial litigation filed by Gordon & Simmons on behalf of its client, David Lerner, can proceed against two well-established entrepreneurs in the restaurant industry, Chris T. Sullivan and Hugh M. Connerty, Jr., among other defendants.

In an order entered on September 30, 2015, Judge Leonard D. Wexler of the U.S. District Court for the Eastern District of New York ruled that Lerner’s Complaint, which was prepared and filed by G&S attorneys Roger Simmons, Shawn Cavenee and Chaz Remus, stated facts sufficient to sustain claims for breach of contract, defamation, tortious interference and fraud, among other claims.  Lerner filed suit in September 2014 against Sullivan, Connerty, ConSul Partners, LLC and Besito, LLC in connection with Lerner’s role in a new venture to acquire and develop restaurant properties, including the Besito restaurant concept.  Defendants moved to dismiss Lerner’s claims in February 2015.  Judge Wexler held the matter under advisement before ruling that Lerner’s case may proceed.

Connerty and Sullivan are well-established in the restaurant industry.  Both were intimately involved in the expansion and growth of the Outback Steakhouse franchise in the U.S. and internationally, as well as in the development and growth of other well-known restaurant properties, including Longhorn Steakhouse, Hooters, Steak and Ale and Bennigans.  In his case, Lerner alleges that he was denied promised commissions and equity for his role in launching a new venture focused on identifying, acquiring and expanding new restaurant properties in the United States.  Besito was the first target of the new venture, and several new locations of this upscale Mexican restaurant have opened, or are planned, on the East Coast.  Nevertheless, Lerner has been largely denied the compensation promised to him for his efforts.

The Court’s ruling means that Lerner’s claims, as pleaded by G&S, shall continue.  That parties are in the midst of fact discovery, which is due to be concluded by the end of the year, with trial anticipated for 2016.

Jake Weddle named a Rising Star for 2016 by Super Lawyers magazine

Jacob (“Jake”) I. Weddle has continued his run as one of a select few notable young lawyers in Maryland.  Super Lawyers magazine for 2016 has recently been published, and Jake, as was the case for 2012, 2013, 2014 and 2015, has been identified as a Rising Star in the area of Civil Litigation.

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 fifth consecutive such honor for Jake, and his partners and colleagues at Gordon & Simmons are proud of his achievement.

G&S Obtains Favorable Settlement for Local Charity

In January, 2015, the firm (Shawn Cavenee and Chaz Remus) obtained a settlement for the benefit of the Frederick Police Activities League (“PAL”) without initiating litigation, and upon terms that were mutually agreeable to all parties. Thereafter, PAL kindly recognized the firm as its honored guests at PAL’s annual fundraiser held at the Delaplaine Visual Arts Center.

G&S (Again) Prevails Against Rent-A-Wreck of America, Inc. in Appeal to the Fourth Circuit.

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.

G&S Wins Summary Judgment in Commercial Lease Dispute

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.

G&S Assists Small Business Owner in Achieving Repeal of Unconstitutional Frederick City Ordinance

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.

Firm Pressing Claims in Federal Court on Behalf of David Lerner

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.

G&S Prevails for Small Business Owner in Zoning Decision

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:

Firm Enters Fray Against School Assessment Testing

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.


Settlement Achieved for Client In Low Policy Limits Personal Injury Case

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.