Gesner v. Canyon Rim Townhomes Association, et al.
Published: Jul. 12, 2001 | Result Date: Apr. 20, 2001 | Filing Date: Jan. 1, 1900 |Case number: 812837 Verdict – $50,000
Judge
Court
Orange Superior
Attorneys
Plaintiff
Defendant
Nicole Whyte
(Bremer, Whyte, Brown & O'Meara LLP)
Experts
Plaintiff
William Krasho
(technical)
Roy H. Adcock
(technical)
Defendant
Sidney Friedman
(technical)
Greg Beebout
(technical)
Facts
The plaintiff in this case was a homeowner in the Canyon Rim Townhomes Association development in Trabuco
Canyon. The Association was previously involved in construction defect litigation which settled for
approximately $5 million, even though the association originally demanded $13 million in damages. After
paying attorneysÆ fees and expert fees and costs, the association netted $3.2 million for repairs. The plaintiff
was a member of the Board of Directors at the time the construction defect litigation was settled but resigned
soon thereafter.
At trial, the plaintiff contended that the settlement money was expended inappropriately, which left several
defective items in the community and the plaintiffÆs home unrepaired. It was also contended during trial, that
the defective conditions which were allegedly repaired in fact remained defective.
The defendants contended that they had discretion under the CC&Rs, to determine how to make repairs, what
repairs to make and where to make repairs.
Approximately one year after the construction defect settlement money had been
received, the plaintiff filed the instant action against the Association for breach of CC&RÆs,
negligence and nuisance and against individual Board members in a shareholderÆs derivative
suit on behalf of the Association, for breach of fiduciary duty.
Settlement Discussions
The defendant association offered a waiver of costs in exchange for a dismissal.
Result
After a three-week trial, the jury returned a verdict in favor the plaintiff (9-3) awarding him $50,000 against the Association for his personal damages, and awarding $975,000 in the derivative claim against the individual defendants, jointly and severally, for breach of fiduciary duty and bad faith.
Other Information
<P>The plaintiffÆs motion for attorneysÆ fees, expert fees and costs pursuant to contract was granted in the amount of $184,343. The defendantsÆ motion for judgment notwithstanding the verdict are pending. All defendants have filed a motion for new trial, and plan to appeal the verdict.<P>
Deliberation
two days
Length
three weeks
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