William and Alice Simon, et al. v. New Discovery, Inc.; The Hofmann Company; Kenneth Hofmann; Ken, Inc.
Published: Aug. 16, 1997 | Result Date: May 23, 1997 | Filing Date: Jan. 1, 1900 |Case number: C9402134 Verdict – $44,000,000
Judge
Court
Contra Costa Superior
Attorneys
Plaintiff
Richard T. Bowles
(Bowles & Verna LLP)
Defendant
David R. Sidran
(Sidran Law Corp.)
Experts
Plaintiff
Stephen Macie
(technical)
Arthur E. Gimmy
(technical)
Lois Stevens
(technical)
Tony Souza
(technical)
Dale Stephens
(technical)
Dean Marachi
(technical)
William L. Clarke
(technical)
Defendant
Martin Wallen
(technical)
George Wolfson
(technical)
Lawrence Karp
(technical)
Michael Yovino-Young
(technical)
Paul Guerin
(technical)
Theodore Winfield
(technical)
Facts
In 1979, defendant Kenneth Hofmann, individually and on behalf of his corporations, defendants Hofmann Construction Company dba The Hofmann Company and Ken, Inc., met with plaintiff William Simon, Fay Louie, Jorgen Lunding, the predecessor to the plaintiffs and the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints. The plaintiffs claimed Hoffman orally represented and promised that if they would make available their property along Highway 4 across the frontage of Discovery Bay, a distance of approximately 1.7 available, he, Ken Hofmann, would as a part of fulfilling his obligations to the county in conjunction with the development requirements for Contra Costa County and Discovery Bay, pay all the costs in conjunction with widening the highway to four lanes and would thereby enhance the value of the properties of the plaintiffs and/or their predecessors by millions of dollars. In reliance on these representations, plaintiffs executed written agreements, referred to as Road Widening Agreements, agreeing to make their frontage available. They caused these agreements to be recorded against their property, clouding title to their property, creating a nuisance. The plaintiffs argued the defendants never fulfilled their obligations under the agreement. The plaintiffs brought this action against the defendants based on fraud, nuisance, breach of contract and breach of a covenant running with the land.
Settlement Discussions
The plaintiffs submitted various settlement proposals to the defendants in conjuction with a JAMS mediation before Judge Fannin. Per the plaintiffs, these proposals ultimately contemplated the defendants widening the highway, getting the properties back within the urban limit line and a modest amount of damages in the amount of $2.5 million and in the alternative the defendants could have acquired the plaintiffs' properties consisting of 840 acres for approximately $30 million. Per the defendants, these proposals ultimately contemplated the defendants paying $25 million and expending up to $5 million to get plaintiff's land approved for development or paying $30 million cash. Just prior to trial, the defendants made a statutory offer offering to settle with the church for $50,000. There were no settlement discussions during trial.
Damages
The plaintiffs claimed the cost to widen the highway to 4 lanes across the frontage of Discovery Bay is currently estimated to be $8.7 million. The plaintiffs also claimed that the failure to widen the highway has resulted in diminution of the value of their property; has prevented development of their property as well as leaving their property outside the urban limit line. This meant that development was impossible until such time as the property could be brought back within the urban limit line. The plaintiffs demonstrated delay damages, by virtue of increased costs of development, totalling approximately $19 million for the 3 properties and diminution of value for the properties ranging in an approximate amount of $16 million versus what the property would be worth if the highway had been widened to 4 lanes and approximately $32 million if the highway had been widened and the property was included within the urban limit line. The total amount claimed was $59 million.
Other Information
The verdict was reached approximately three years after the case was filed. A mediation was held in August 1996 before Judge Coleman Fannin of JAMS/Endispute. It did not resolve the matter. The defendants have indicated that they intend to file multiple post trial motions and to appeal. In discussions with the jurors, the jurors have indicated that they found the testimony of all of the Hofmann witnesses, including Mr. Hofmann, Mr. Shaw and Mr. Rossi, to be lacking in credibility. Per the defendants the jury also found the compensatory damages claimed by the plaintiffs to be excessive.
Poll
12-0 (liability and damages); 9-3 (amount of punitive damages)
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