Facts

Plaintiff sued for breach of purchase and sale agreement and escrow instructions, breach of fiduciary duty and negligence. The action arose out of a failed escrow for the purchase and sale of a commercial property.

Plaintiff alleged that defendants failed to meet a mandatory escrow deadline and failed to follow plaintiff's instructions to demand money from his 1031 exchange before the escrow deadline. As a result of not requesting the money, the 1031 accommodator (who had plaintiff's money) went bankrupt, preventing plaintiff from completing the purchase of the property.

Plaintiff allegedly discovered that the defendants entered a secret back room deal, which prevented them from meeting the escrow deadline. The deal required defendants to record something against the property's title, which in turn delayed escrow. The secret deal was never disclosed.

During trial, plaintiff allegedly discovered that defendants had concealed evidence; the omitted evidence formed the basis of a new defense, never before disclosed as part of discovery. On the basis of the concealed evidence, Judge Czuleger agreed to provide CACI 204, the adverse jury instruction regarding concealed evidence.

PLAINTIFF'S CONTENTIONS:
Plaintiff contends that defendants breached the purchase and sale, and escrow agreements by entering the secret agreement to record documents against title and for not meeting the mandatory escrow deadline.

Plaintiff also contends that North American Title breached its fiduciary duty and was negligent by concealing information from plaintiff about escrow and destroying and concealing evidence.

DEFENDANTS' CONTENTIONS:
Defendants contend that under the clear language of the Escrow agreement, the closing date was an estimated closing date and the agreement provided what was to occur in the event escrow was not in a condition to close by the estimated closing date. Plaintiff allegedly ignored that provision. There was no "secret" agreement between the Trusts and escrow. Defendants contend that the Trusts did not breach the terms of the Escrow Agreement and both the Trusts and the Escrow Company conducted themselves in accordance with the relevant agreements. Both defendants urge that the proximate cause of plaintiff's damages, if any, was the bankruptcy of plaintiff's selected 1031 Accommodator. Defendants contend that the Accommodator failed and refused to deliver plaintiff's funds to the escrow. Defendants contend that there was absolutely no concealment of evidence. There was one e-mail and one document out of 6,000 pages of documents that plaintiff claims were not produced and the evidence was in direct conflict whether escrow had those two documents. The Escrow Company in addition to denying liability for breach of contract denied any liability for negligence or breach of fiduciary duty.

Settlement Discussions

Plaintiff demanded $2,000,000. Defendants offered $100,000 to $140,000. Defendants contend that plaintiff demanded $2,000,000.00 during settlement discussions and lowered his claim to $1,033,000.00 at the time of trial.

Result

Jury Verdict for plaintiff for $2,050,000 on all claims. The amount of the verdict was $300,000 against the Trusts and $1,750,000.00 against North American Title.

Other Information

On interview with the jurors, jurors found expert testimony of defendants' experts Barbara Luna and Donald Shewfelt to be not credible; Luna admitted that she had been twice excluded (in reported decisions) from testifying as an expert. Both defendants intend to file post trial motions for a new trial and a judgment notwithstanding the verdict.

Deliberation

four hours

Poll

10-1 (breach of contract, breach of fiduciary duty and negligence)

Length

10 days