David has achieved great success in representing his clients in complex business litigation. He has obtained favorable verdicts at trial in the Federal District Court in Boston, Massachusetts Superior Courts and District Courts. He has successfully represented both Plaintiffs and Defendants in the courtroom in business matters including contractual disputes, derivative actions, construction litigation, breach of fiduciary duty claims, fraud, breach of M.G.L. c. 93A, tortious behavior, and collection matters.
David has obtained two of the largest verdicts in Barnstable County. Over the past several years, a $2,750,000.00 breach of contract jury verdict and a $2,200,000.00 jury verdict for fraud and violation of M.G.L. c. 93A. This verdict constituted a “Top Ten” jury verdict in the Commonwealth of Massachusetts, for 2009, as per the Massachusetts Lawyers Weekly. (See In the News).
Of course, when private arbitration or mediation is the preferred course, David has established relationships with respected neutrals throughout MA.
IN THE NEWS
Developer who tried to back out of deal hit with $2.5M verdict
By: David E. Frank October 12, 2009 Lawyers Weekly 2009
“Blame, bully and delay.”
Hyannis attorney David V. Lawler hammered home those three words in his closing argument to describe to jurors the conduct of a sophisticated real estate developer accused of swindling his elderly clients out of more than half-a-million dollars.
When all was said and done, Lawler was able to convince a Superior Court jury, and later Judge Robert C. Rufo, that a Connecticut-based realty company and its trustee had engaged in fraudulent misrepresentation, breach of contract, and unfair and deceptive acts. For Joseph and Ruth Black, that added up to $2.5 million, one of the
largest contract awards to result from a trial in Barnstable County.
“When the real estate market on Cape Cod collapsed, the developers felt that they were on the losing end of a bad deal and thought nothing of tormenting my clients and dragging them through this process for almost four years,” Lawler says. “Having to carry and maintain the property without even being able to use it created a tremendous amount of stress for them. This couple was in a complete and utter state of flux.
“The lawyer for the developer, Christopher J. Kirrane of Dunning, Kirrane, McNichols & Garner, unsuccessfully argued at trial that his client acted in good faith and was, in fact, the victim of breach himself – at the hands of the Blacks. When contacted by Lawyers Weekly, the Mashpee attorney declined to comment.
Falmouth Ox-Bow Realty Trust, et al. v. Black involved a dispute over a hotly contested 2004 purchase-and-sale agreement involving a parcel of land in Falmouth that Ruth’s family had owned for nearly a century. Donald R. Pinto Jr. of Boston’s Rackemann, Sawyer & Brewster, a real estate litigator who was not involved in them case, says the facts in Falmouth Ox-Bow are not unique to Lawler’s clients or to Cape Cod. “These kinds of cases are filling up the court system these days,” Pinto says. “I’ve seen any number of disputes in the past year or two that are a direct result of plummeting prices and a chill in the real estate market, which causes people to see the benefits of going forward with a transaction differently than when they signed it.”
Lawler says the developer – particularly its manager, owner and authorized representative, Nicholas Owen – “had
just a complete and utter disregard for what affect their actions had on my clients.” Those actions included demands that the sale price be reduced and threats to tie up the property with a lawsuit, he says. In an effort to stall the closing, Owen blamed the delays on everyone but himself, Lawler says. When the Blacks questioned why the deal was not moving forward, Owen pointed the finger at the Massachusetts Housing Authority, town administrators, Falmouth’s legal counsel, and the Blacks’ transactional attorney, Brett A. Sanidas.
“When that didn’t work, Owen simply started dragging his feet. And when that didn’t work, he bullied my clients by
threatening them with litigation,” Lawler says. “He didn’t seem to care that these were good people, in their 80s,
who were just trying to sell their home to help them get through their retirement. ”
In 2004, Joseph Black, a retired municipal finance employee from Virginia, and his wife, Ruth, entered into a
purchase and sale agreement with Capital Trust of Connecticut and Falmouth Ox-Bow Realty Trust. The transaction was for the sale of a home that Ruth’s family had owned for nearly 100 years. Under the terms of the agreement, which was reached without an attorney, Owen was required to use “reasonable efforts” to obtain approvals needed for a multi-unit development under the Massachusetts affordable housing statute, Chapter 40B. The Blacks reportedly were under the impression that Owen would obtain the permits from the state and then “flip” the property. Although some permitting occurred, the Blacks accused Owen of failing to take adequate steps to close the deal. The seminal moment in the case came on March 23, 2007, when attorney Sanidas, hired by the Blacks in 2005, met with Owen at Sanidas’ Falmouth law office. Sanidas testified that Owen came to the meeting and demanded, “out of nowhere,” that the price be re-negotiated from $630,000 to $450,000. “I remember that meeting like it happened yesterday,” Sanidas says. “The realtor and I were both looking at each other, saying: ‘You’ve got be kidding.'”
But it was no joke.
In fact, according to Sanidas’ trial testimony, Owen told him that if the deal were not accepted, he would turn around and sue the Blacks, which would “tie up their property for years so that they wouldn’t be able to sell it to anyone.” A few months later, with Lawler now involved, the couple terminated the P&S agreement, prompting the developer to respond with a breach-of-contract suit against the Blacks. In a counter-claim, the Blacks alleged breach of contract, violations of Chapter 93A, and fraud and misrepresentation. “It was a judgment call that turned out to be the right one, but it was certainly risky,” Lawler says of his decision to cancel the contract. “I either had to pull the trigger or let this drag on. It was black and white to us, but them developer was no dummy. If the facts had played out differently, it could have backfired.”
Particularly since Massachusetts does not recognize a theory of anticipatory breach, Lawler fully expected the
developer to make good on his promise to sue. But where Sanidas had stayed in constant contact with Owen and
created a paper trail throughout the process, Lawler was confident the jury would be able to determine who the
culprit was. That confidence was validated when the jury found in favor of his clients on the counter-claim and against the developer on his complaint.
“Every couple of weeks, Sanidas sent [Owen] a letter asking where they were with this deal and laying out very
clearly what was happening along the way, which was critical to putting this case together,” Lawler says. “That
paper trail made it very difficult for the developer to say that he was acting swiftly to get this deal done.”
At a Chapter 93A damages hearing on Sept. 11, Lawler requested treble damages. Rufo instead doubled the award
and also ordered the developer to pay Lawler’s counsel fees.The fact that Rufo declined to triple the award is not surprising, according to Boston lawyer James F. Kavanaugh Jr.The attorney at Conn, Kavanaugh, Rosenthal, Peisch & Ford says judges in Massachusetts – who decide Chapter 93A questions on a discretionary basis – are often reluctant to impose the more severe punitive sanction. “Each individual judge is different, but my sense is that they award double damages where they think there hasbeen the necessary showing of a knowing and willful violation, but that it is just not extreme enough to warrant theultimate penalty,” he says. Pinto, meanwhile, says Falmouth Ox-Bow got as far as it did because the purchase and sale agreement was drafted in an imprecise manner. Contracts like the one Lawler’s clients entered into, which call for one of the parties to make “reasonable efforts,” allow too much room for interpretation, he says.
“It sounds like in this case there was some discretion in the developer’s hands,” Pinto says. “If you have a term in
the contract that calls for something like ‘reasonable efforts’ to be made, you’re creating some wiggle room, which can lead to some lively debate about whether that standard was met.”
Both Lawler and Sanidas agree that the vague P&S agreement fueled the case. In particular, they say it failed to
include deadlines for when Owen had to meet specific conditions. “There is no question in my mind that there was an intentional delay by the developer to put himself in a better position, with the hope that market conditions would improve,” Lawler says. “While a better agreement would’ve
helped, the court obviously came back with strong vindication by telling my clients and others going through the same thing that what the developer did was wrong and that it was, in fact, an unfair and deceptive act under the