Confidential
Settlement – $150,000Judge
Court
San Diego Superior
Attorneys
Plaintiff
Defendant
Steven E. Boehmer
(McDougal, Boehmer, Foley, Lyon, Mitchell & Erickson)
Experts
Plaintiff
Thure R. Stedt
(technical)
Guy W. Winton III
(technical)
Facts
Defendants, Lindsay and Joseph Simpkins III, purchased approximately 200 acres of land in Pine Valley in the late 1980s. The Simpkins hired the plaintiff, Robert K. Burdette, R.C.E., to obtain a final subdivision map for 109 acres of the property pursuant to an Agreement dated Sep. 17, 1996. The terms of the Agreement contemplated Burdette would be entitled to a five-acre lot with an agreed value of $90,000 that would offset up to $90,000 in fees he incurred on the project, with any balance paid by the Simpkins. In March 2004, Burdette, when Burdette's fees and costs totaled more than $140,000, demanded the Simpkins front the costs of a required environmental study and reimburse him $50,000 of the out-of-the pocket expenses he had incurred that the Agreement required the Simpkins to pay. When his demand was not met, he stopped work on the project, recorded a Design Professional's Lien and filed suit for breach of contract, to foreclose the lien and common counts.
Damages
The plaintiff claimed $142,965 in engineering fees and out-of-pocket expenses, about half of which were for consultant's services.
Result
The defendant Simpkins executed a promissory note for $150,000 in favor of plaintiff Burdette, secured a first deed of trust on the real property. The note is due upon the sale of any portion of the property, or at least in three years, and carries no interest.
Other Information
The parties agreed to a voluntary mediation in March 2004 where a settlement was agreed upon. However, defendant Lindsay Simpkins, obtained a new counsel in June 2004 and refused to sign the settlement documents from the mediation. After her new counsel's motion to continue the trial 90 days was denied, he filed a motion to file a compulsory cross-complaint. That motion was denied on the ground it had been filed in bad faith for the purpose of delaying the trial. The Fourth District Court of Appeal denied the defendant's petition for a writ of mandamus. Four days before trial call, the defendants made a settlement offer plaintiff accepted to avoid the costs of trial, appeal and possible subsequent retrial.
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