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News about Lawyers
News about Firm Litigation
NEWS ABOUT VANDEVEER GARZIA LAWYERS
“NO CAUSE” DEFENSE VERDICT RETURNED IN MACOMB COUNTY
DOG BITE CASE
Nicolas Vesprini recently received a defense verdict
at the conclusion of a trial in Macomb County Circuit Court based upon a
finding that his client was not negligent, and therefore not liable for the dog
bite injury suffered by Plaintiff. Mr.
Vesprini’s client was the owner/landlord of the home where the bite
occurred. Plaintiff, a contractor, alleged
that he went to the home at the request and direction of Defendant to complete
measurements for work to be performed to Defendant’s home.
Plaintiff alleged that while he was in the backyard,
he was bitten by a tenants’ dog, which Plaintiff alleged was vicious and
aggressive with a history of similar behavior.
Plaintiff also alleged that Defendant knew of the dog’s dangerous
propensities and failed to warn Plaintiff of the danger. Defendant argued that he did not have any
ownership or possessory interest in the dog, and had no control of the dog.
Further, Defendant denied that he told Plaintiff to
go to the home, testifying that no agreement for the work had been reached and
that he would not have instructed Plaintiff to go his tenants’ property without
Defendant or the tenants present. Defendant also denied Plaintiff’s contention
that he knew of the dog’s alleged vicious propensities.
Based upon the evidence presented, the jury agreed
with the Defendant, finding that he was not negligent.
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TOM PETERS, JIM THOME,
WILLIAM KIRIAZIS, DANIEL STEELE,
JOHN LYNCH, AND DAVID TIMMIS NAMED
“SUPER LAWYERS” 2009
Super Lawyers is a service
conducted by the publishers of Law & Politics. Super Lawyers
identifies the top 5 percent of attorneys in the state as chosen by their peers
and through the independent research of Law & Politics.
Law & Politics mailed more than
30,000 ballots to active attorneys in Michigan recently asking those attorneys
to nominate the best lawyers that they have personally observed. Each
candidate who was nominated was then researched and evaluated. Peer
recognition and personal achievement were primary factors in this
process. Candidates were then evaluated again by a blue ribbon panel of
preeminent peers in their practice areas. An attorney who was finally
selected in this process was then designated a “Super Lawyer”. No more
than 5 percent of Michigan attorneys were selected for this honor.
Thomas M. Peters was designated a Super Lawyer in the
practice area of Personal Injury Defense. James K. Thome was designated a Super Lawyer for
Construction Litigation. William L. Kiriazis was
designated for Construction litigation as well. Daniel
P. Steele, John J. Lynch and David B. Timmis were named
Super Lawyers for General Litigation.
Tom’s areas of
practice include Transportation, Trucking and Highway Liability, Alternate
Dispute Resolution and Insurance Coverage and Indemnity Law.
Along with Construction Law and Litigation,
Jim also concentrates his practice in the areas of Intellectual
Property and Trademark Litigation and Employment Law and Litigation.
Bill's areas include Construction Law and Litigation, Aviation Law and Litigation, Design
Professional Representation and Product Liability.
Dan focuses on Motor Vehicle Law and Litigation, Employment Law and Litigation, Construction Law and Litigation, Aviation
Law and Litigation, and Product Liability.
John specializes in Alternative Dispute Resolution, Construction Law, Professional Liability, Governmental and Mass Transit Liability and Litigation.
Dave practices in the areas of Motor Vehicle Law and Litigation, Business and Commercial Litigation, Employment Law and Litigation, and Product Liability
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WILLIAM L. KIRIAZIS AND JAMES K. THOME DESIGNATED “SUPER LAWYERS” FOR
CORPORATE LITIGATION
Bill Kiriazis and Jim Thome have been named “Super Lawyers”
in the 2010 edition of Super Lawyers,
Corporate Counsel Edition. The Super Lawyers, Corporate Counsel Edition lists the “Top Attorneys in Corporate
Litigation” from throughout the United States. Super Lawyers is a service administered by Law and Politics that uses surveys to identify top attorneys in
particular legal practice areas.
Both Bill and Jim have been designated Super Lawyers for the state of Michigan in the practice area of
Construction Litigation.
Jim currently holds the title of firm President and Bill is
the Managing Partner of Vandeveer Garzia.
Among other practice areas, both Bill and Jim specialize in
Construction Law and Litigation.
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FAVORABLE
DEFENSE VERDICT IN OAKLAND COUNTY RECKLESS MISCONDUCT CASE
Nicolas
Vesprini and Lauren Wawrzyniak recently prevailed in trial, receiving a jury
verdict of “no cause of action,” finding that their client was not liable for
injuries Plaintiff suffered during a game of soccer. At trial, Plaintiff requested an award of
$90,000. Plaintiff alleged that while
playing in the soccer game, Defendant (a player on the opposing team) “sucker
punched” him, breaking his jaw.
Defendant maintained that Plaintiff’s broken jaw was the result of an
accidental elbow resulting from the players jostling for position to make a
play on the ball and was an ordinary part of the game of soccer. It is Mr. Vesprini’s and Ms. Wawrzyniak’s
opinion that the jury found that Plaintiff was not credible, both with regard
to the manner in which the incident occurred and the extent of his damages,
given that they were able to bring out inconsistencies in his testimony at
trial as compared to his testimony in deposition, testimony of other witnesses,
and his own medical records. Based upon
the evidence presented, the jury found that Defendant’s actions were not
reckless, and did not exceed the bounds of conduct or inherent risks associated
with the game of soccer.
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FAVORABLE VERDICT IN MACOMB COUNTY BREACH OF CONTRACT CASE
David Timmis and Timothy Connaughton
recently prevailed at trial on a breach of contract action in Macomb
County Circuit Court. The last offer by the Defendant prior to
trial was $17,500.00. The jury returned a verdict of
$240,000.00. Mr. Timmis and Mr. Connaughton are of the belief
that the jury was convinced that the representatives of the Defendant
were less than forthright in their testimony about meeting their
contractual obligations. This was the result of extensive
preparation that resulted in an effective cross-examination of each of
the Defendant’s witnesses, which in turn resulted in numerous
misstatements of fact and conflicting testimony from the
Defendant’s witnesses. An appeal is likely, but Mr. Timmis
and Mr. Connaughton remain confident that the Court of Appeals will
uphold the verdict, which was justified by the facts and circumstances
involved in this breach of contract action.
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BIC Corporation
Prevails in Trademark Infringement Lawsuit
Shelton, CT – May 15, 2008 -
BIC Corporation today announced that it recently resolved all of its claims
against Capital Sales Company and J&D Enterprises, Inc., in a trademark
infringement lawsuit involving both companies and other defendants.
In January 2006, BIC became
aware that counterfeit BIC lighters, under the brand name J&D, were being
offered for sale in Pennsylvania and Michigan. While the
J&D lighters had the appearance of being BIC lighters, they were extremely
dangerous because they failed to comply with various requirements of the American
Society for Testing and Materials (ASTM) Standard Consumer Safety Specification for Lighters, including flame
height and extinguishment. In fact,
testing showed that the lighters exhibited flame heights in excess of one foot
and repeatedly failed to extinguish after being operated. Additionally, the J&D lighters were not
child-resistant and, therefore, did not meet the Consumer Product Safety Commission
(CPSC) regulations requiring that the lighters be child-resistant.
BIC sued Capital Sales
Company (including Sam Haddad), J&D Enterprises, Inc. (including Nader
Enterprises, Inc., Rami Nader and Fadi Zaharn), Huanqiu Lighters Manufacturing
Co. Ltd., Asiapac Development Co. Ltd., and Asiapac Group for trademark and
trade dress infringement in violation of the Lanham Act, and various other
statutory and common law violations.
The federal court issued a
preliminary injunction against the defendants prohibiting them from any further
sale, importation, manufacturing, advertising, or distribution, of the
infringing products. Additionally, the
court permitted BIC, with the assistance of local law enforcement, to enter
Capital Sales Company property and seize documents and inventory, pending
further investigation. The court further
ordered the destruction of all remaining unsold lighters in the possession
of the defendants.
At the conclusion of
discovery, Capital Sales Company and J&D Enterprises, Inc. settled with BIC
for confidential amounts. Defendants Huanqiu
Lighters Manufacturing. Co. Ltd., Asiapac Development Co. Ltd. and Asiapac
Group, never answered the Complaint and default judgments totaling over $2
million were entered against them.
Permanent injunctions were entered against all defendants.
The U.S. Customs Service was
also involved, seizing a second shipment of J&D lighters bound for Nader
Enterprises, Inc. Those lighters were
quarantined and later destroyed by Customs.
Nader has since gone out of business.
“BIC lighters are patented
and trademark protected, each possessing intellectual property that is the
result of over thirty years of manufacturing and design experience,” said Tom
Kelleher, general counsel for BIC. “Representing
the state of the art in lighter design and manufacturing, BIC lighters possess
the highest quality for the trade and the consumer. Counterfeiting BIC lighters and attempting to
pass off inferior lighters as BIC products will not be tolerated. We will vigorously protect BIC’s intellectual
property rights, prosecuting violators to the full extent of the law. Customers and consumers alike are reminded to
pay particular attention to the products they purchase and sell, so as not to
be confused by a counterfeit product,” added Kelleher.
BIC was represented by Jim Thome and Tom Peters of Vandeveer
Garzia, Troy, Michigan.
BIC Corporation v. Capital Sales Company, Sam Haddad,
Nader Enterprises, Inc., Rami Nader and Fadi Zaharn, individually and doing
business as J&D Enterprises, Inc., Huanqiu Lighters Manufacturing Co.,
Ltd., Asiapac Development Co., Ltd., Asiapac Group, John Doe Company and John
Does 1-100. U.S. District Court, Eastern District of Michigan, Case No.
2:06-cv-10267.
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JIM THOME WINS DISMISSAL OF TRADEMARK CASE
A night club in a northern suburb of
Detroit sued a restaurant and night club business in another Detroit suburban location in the United States District Court
for the Eastern District of Michigan.
The plaintiff claimed that the defendant infringed its registered
trademark when it used that trademark to describe a portion of its business.
The
plaintiff claimed that it was the first to use and register the trademark
“ultra lounge” in Michigan. The plaintiff
also claimed that it suffered damages as a result of the defendant’s use of
that name or description because its business sustained significant losses from
the time that the defendant began using the same name.
Attorneys for the parties exchanged
records and documents and conducted depositions of the owners and employees of
the two businesses. After the completion
of these activities, the defendant brought a motion for summary judgment. U. S. District Court Judge Marianne Battani
granted the defendant’s motion and dismissed the case. The judge also awarded costs to the
defendant. Jim Thome represented the
defendant on behalf of the firm.
Posh
Entertainment, Inc., d/b/a Posh Nightclub & Ultralounge vs Eton Street
Restaurant, Inc. d/b/a Gotrocks, United States District Court, Eastern
District of Michigan, Case No. 2:06-cv-11991.
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Vandeveer Garzia is pleased to announce that Timothy Connaughton has become a
partner with our law firm effective January 1, 2008. Tim
practices in the areas of first and third party automobile negligence,
premises liability, civil rights, employment law, contract disputes,
insurance coverage and general civil litigation.
FIRM WINS DISMISSAL OF EMPLOYMENT CASE
Shortly
after the firm’s client, a steel casting company, hired the plaintiff as a
Production Manager, he sustained an injury on the job. After the plaintiff recovered from his injury
and a physician indicated that he was able to return to work without
restrictions, the company terminated his employment for poor performance. The plaintiff then sued the firm’s client in
the Wayne County Circuit Court alleging violations of the Michigan Worker’s
Disability Compensation Act and the Michigan Persons with Disabilities Civil
Rights Act.
After
depositions of the plaintiff and others, the firm brought a motion for summary
disposition asking the court to dismiss the case on the grounds that there was
no genuine issue of material fact that the plaintiff’s claims lacked
merit. The judge agreed and granted the
motion.
The
plaintiff has appealed the trial court’s decision in Leinninger v Delray Steel Casting, Wayne County Circuit Court case
number 06-628405-NZ. The defendants have
filed a motion to assess costs and attorneys’ fees against the plaintiff.
James K.
Thome supervised the case for the firm’s clients.
FIRM WINS CONSTRUCTION ACCIDENT ARBITRATION
Jim Thome recently represented a firm client in an arbitration hearing that resulted
in a complete victory for the client.
The
Michigan Department of Transportation hired a general contractor to
perform renovations to the I-94 Expressway in Macomb County in 2002 and 2003. The general contractor hired
subcontractors to perform some of the work. One of those subcontractors hired the
firm’s client to clean storm sewers after the renovation work. There were claims that water began to
accumulate at locations on that freeway due to problems with the work of
the contractors and a failure to adequately clean the storm sewers.
After
a rain storm on May 5, 2003, two people, a man and a
woman, were involved in a minor accident in an area of standing water on
that freeway. They drove off the
freeway onto the shoulder and were standing outside of their vehicles
talking when another driver hit the standing water, lost control of her
truck, and struck the two people.
One was killed as a result of the accident and the other sustained
severe injuries.
The
injured person and the relatives of the deceased sued MDOT and the
contractors who did the work in the area of the accident. Five contractors, including the
firm’s client, agreed to settle the injury and death cases. Each contributed $500,000 to a total
settlement of $2.5 million. The
contractors then agreed to submit the case to binding arbitration in
order to re-allocate that settlement amount based on the fault or
involvement of each contractor in contributing to the conditions that
caused the accident.
The
arbitration hearing lasted several days with witnesses and numerous
exhibits. In June 2007, the
arbitration panel determined that the firm’s client was not
culpable and awarded the firm’s client the entire $500,000 it had
previously contributed to the settlement of the injury and death cases,
along with interest in excess of $30,000.
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Bruce Pearce has recently received
dismissals from several courts regarding automobile negligence
claims:
Judge Gershwin
Drain from the Wayne County Circuit Court recently ruled as matter of law
that plaintiff failed to establish the necessary element of proximate
cause in an automobile accident and granted defendants motion for summary
disposition. Shortly after the accident the plaintiff was diagnosed with
a “syrinx” of the spinal column. This condition caused her to
be confined to a nursing home where she currently resides.
Mr. Pearce argued that it was speculation to conclude that the auto
accident caused this condition and the court agreed. Richardson v. Collins, WCCC
Judge Miller
from the Macomb County court also recently granted
summary disposition in favor of Mr. Pearce’s client on the issue of
“serious impairment”. Judge Miller ruled as a matter of law
that the “course and trajectory” of her life had not been
altered as a result of the broken foot incurred in an automobile
accident. Accordingly he dismissed the case. Collins v. Mazzolla, MCCC
Mr. Pearce also received a favorable ruling from Judge Warfield Moore
from the Wayne County Circuit Court in a case involving neck and back
injuries. The plaintiff claimed these injuries as a result of a
motorcycle accident. Judge Moore agreed with Mr. Pearce’s position
that despite the plaintiff’s injuries that the injuries did not
satisfy the necessary requirements set out by the Michigan Supreme Court
decision of Kreiner. Accordingly Judge Moore granted defendants
motion for summary disposition. Meinheit v. Mitchell, MCCC
Another motion for summary disposition on the issue of “serious
impairment” was granted by Judge Joslyn in Tuscola County. The plaintiff alleged
injuries to her back, neck and jaw (ie TMD) as a result of auto accident.
Her treating physician disabled her from returning to her regular
employment as a custodian as a result of these injuries. However,
Mr. Pearce was successful in persuading the court that her injuries
did not meet the threshold required to recover under the law in Michigan. Jones v. Boyce, TCCC
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TRIAL/RESOLUTION DURING JURY
DELIBERATIONS - IMPORTANCE OF TIMELY FILING OF
NOTICE OF NONPARTY FAULT
Mr. David Timmis recently tried a case on
behalf of a national product manufacturer and a national retailer in the County of Oakland. Despite a Case Evaluation that was
weighted significantly against the product manufacturer and the retailer,
the proofs presented at the time of trial convinced a co-defendant, the
manufacturer of the display on which the products were situated, to pay
all but a nominal portion of the resolution of the claim. The
agreement to resolve the claim occurred after the jury had commenced
deliberations.
The significance of the decision of the manufacturer of the display, to
pay all but a nominal portion of the settlement figure, is that it is
important to consider nonparties potentially at fault at the outset of
the litigation. The manufacturer of the display was not initially
named as party by Plaintiff’s counsel. Upon the filing of a Notice
of Nonparty Fault and as the result of the urging of Mr. Timmis, the
Plaintiff’s attorney amended the original Complaint to include the
display manufacturer as a Defendant. Without the display
manufacturer as a co-defendant, the product manufacturer and the retailer
would likely have been found responsible for the Plaintiff’s
injuries.
APPEAL/CONTRACTS/ALLEGED
CONDITION
PRECEDENT MUST BE STRICTLY CONSTRUED
Mr. David
Timmis recently received a favorable ruling from the Michigan Court
of Appeals in a contract action involving the attempted purchase of a car
dealership. The Plaintiff signed an agreement with the Defendant
that would entitle the Plaintiff to a significant fee if the Plaintiff
was able to enter a Purchase Agreement with the owner of a car
dealership, then transfer his rights in the Purchase Agreement to the
Defendant. The Plaintiff entered into the Purchase Agreement with
the owner of the car dealership, then transferred his interest in the
Purchase Agreement to the Defendant. The subject agreement provided
as follows:
Meagher agrees to execute in escrow such
documents as are necessary to convey any and all interest, right and
title in the established LLC and its assets to LaFontaine. For and
in consideration of the conveyance of this interest, LaFontaine agrees to
make payment to Meagher the sum of Two Hundred Thousand Dollars ($200,000.00)
in cash at the closing of the dealership.
The
Defendant claimed that the phrase “at the closing”
constituted a “condition precedent”, and relied on this
position to avoid paying the Plaintiff, as the Defendant never closed on
the purchase of the dealership. The Court of Appeals disagreed
with the Defendant’s position and held that the “clear
language (of the agreement between Mr. Meagher and Mr. LaFontaine)
… conditions payment on Plaintiff’s conveyance of his
interest and not a closing of the purchase”. The Court
further commented that “courts are not inclined to construe
stipulations of a contract as conditions precedent unless compelled by
the language of the contract.” Click here
for text of unpublished opinion.
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