Examples of Mr. Schumacher’s experience include the following:
Dismissal of all claims (over $12 million) related to a three-day blackout and resultant loss of use and property damage for the design-build electrical subcontractor. The Bellagio Hotel & Casino filed a complaint in State Court against the general contractor and electrical contractor. We filed a series of motions to dismiss based on Nevada’s Economic Loss Doctrine. During the pendency of the motions Bellagio as plaintiff attempted to remove the case to Nevada Federal Court. Bellagio concurrently filed on behalf of its “subrogated” property casualty carriers another Federal complaint for essentially the same claims. The State Court struck Bellagio’s “fugitive” Notice of Removal, retained jurisdiction and ordered Bellagio’s complaint dismissed. Similar motions to dismiss filed in Federal Court were granted based on the Res Judicata and Issue Preclusion Doctrines. The two Federal Court complaints were consolidated and dismissed. Bellagio appealed the state and Federal Court actions. Ultimately the appeals were abandoned.
Motion for summary judgment granted in favor of the primary developer in a Clark County District Court lawsuit stemming from a development agreement to build a hotel/casino in Las Vegas. Gordon & Rees represented the primary developer in this indemnity action to recover over $2 million spent in breach of contract litigation between former developer partners of the hotel/casino venued in Los Angeles County Superior Court, United States Federal Court, and in a binding arbitration. The basis for the underlying litigation was that some of the developer partners failed to contribute the monies necessary to fund the nearly $1 billion project causing the primary developer to spend additional millions of dollars on the project and incur debt obligations of over $400 million in an effort to save the investment. The project eventually was cancelled because of capital deficiencies and the weakening economy. Gordon & Rees filed a motion for summary judgment based on a Memorandum of Understanding and Settlement Agreement ("Agreements") between the former developer partners that contained an indemnity provision in favor of Gordon & Rees's client, the primary developer. The defaulting developer partners, related entities, and individual guarantors argued in opposition that Gordon & Rees's client failed to tender the defense of the underlying litigation and therefore was not entitled to indemnity. It was undisputed that the primary developer did not tender its defense in the underlying litigation. Gordon & Rees successfully argued that the indemnity language in the Agreements did not require a tender as a condition for the indemnity obligation, relying on Nevada's "Plain Meaning Rule" in arguing to the court that the general rule of law requiring a tender to trigger an indemnity obligation did not apply to this case because the indemnity provision was silent as to any tender requirement. The court granted Gordon & Rees's motion for summary judgment finding that the client was owed indemnity relative to the underlying litigation from the developer partners, related entities, and individual guarantors notwithstanding the absence of a tender. The case is scheduled to go to trial in August as to damages but will likely settle before then in the client's favor considering the positive ruling from the court.
Motion for summary judgment granted in construction defect litigation which eliminated all construction defect and related claims asserted against the firm’s client, a subcontractor. The complex multi-faced litigation involved numerous lawsuits covering a myriad of issues relating to construction defect, fraud, mechanics’ liens, bankruptcy, and contracts. The matter arose from construction of a concrete parking garage and work on an office building that was part of an industrial and commercial complex. The Gordon & Rees client, a subcontractor, entered into two contracts totaling over $3 million. Approximately nine months after construction commenced, the owner removed the general contractor and its subcontractors from the Project due to alleged fraud and other improprieties on the part of the general contractor, including construction deficiencies. At the time Gordon & Rees’s subcontractor client was removed from the Project, the client was owed about $300,000 for work performed. The client recorded mechanics’ liens and filed a Complaint with the Nevada State Contractors Board (“NSCB”). The NSCB found that the Complaint was valid and ordered the general contractor pay the full amount owed to the client. The general contractor refused to make payment. Complex litigation ensued between the owner, general contractor and most of the subcontractors. (Eight lawsuits were consolidated into this matter which is scheduled to go to trial May 2010.) The general contractor filed for bankruptcy protection shortly after the litigation process began. The bankruptcy stay was eventually lifted and the litigation ensued. The owner defended its refusal to make payment by contending that there were millions of dollars in construction defects attributable to subcontractors, including Gordon & Rees’s subcontractor client. Mr. Schumacher successfully argued to the court that Nevada's Economic Loss Doctrine precludes an owner from pursuing claims against those with which it does not have privity of contract (either direct or as a third party beneficiary) and where there are no claims of personal injury or damage to other property as the latter term is defined in Nevada case law. The court granted Mr. Schumacher’s motion for summary judgment and, thereby, all construction defect and related claims against the subcontractor client were eliminated.
Victory in $2 million three week binding arbitration on behalf of a design build general contractor ("GC") in a large commercial/industrial project. The owner sought approximately $2 million in damages for delay, liquidated damages, impact and construction defects. At issue were various revisions to the scope of the contract and whether the GC was entitled to contract increases (many of which were alleged by the owner to be fraudulent) above the guaranteed maximum price ("GMP"). The owner argued that since it was a GMP design build project, the GC was not entitled to anything above the GMP amount. Gordon & Rees argued that owner-initiated changes and upgrades expanded the scope of the project and, accordingly, the GC was entitled to contract increases (which equated to an underlying $700,000 mechanic’s lien) commensurate with the scope changes. The arbitrator awarded the GC over $700,000 on its affirmative claim and awarded the owner only $650,000 of its $2 million in claimed damages. Many post arbitration motions were filed. The arbitrator granted the GC's motion to reduce the owner's award and the District Court granted the GC's motion to reduce the arbitrator's modified award and granted a motion for statutory attorney fees, costs and interest. Gordon & Rees also initiated an indemnity against subcontractors and Gordon & Rees expects to recoup a substantial portion of the arbitration award for its client.
Motion for Summary Judgment granted as to alleged $8 million domestic plumbing system defect for the plumbing/HVAC contractor at the Venetian Hotel & Casino days before trial. Case prosecuted concurrently with Federal Court action, binding arbitration process and out of state coverage lawsuit. Contractor went on to prevail at trial on its mechanics lien case for over $4 million. Was appointed by project OCIP carrier to represent most of the other enrolled subcontractors alleged to have performed negligent and defective work. Successfully defended all defect claims against those subcontractors.
Dismissal of all claims (over $50 million) related to delayed opening of Cirque Du Soleil show and cancelled shows at the MGM Grand Hotel & Casino/KA Theatre caused by construction defects for specialty steel contractor.
Motion for Summary Judgment granted in favor of life safety consultant related to wrongful death of worker on construction site at the World Market Center. Numerous violations of OSHA job site safety regulations were alleged. We filed motion based on the Nevada Industrial Injury Act and related case law. Consultant was deemed through statutory construction to be “employer” and consequently the exclusive remedy of worker’s compensation applied.
Currently representing numerous subcontractors enrolled in project OCIP in NRS Chapter 40 construction defect luxury condominium tower litigation at Turnberry Towers. Costs of repair and related damages allegations exceed $50 million for each of the 40 story Towers.
Counsel for all types of business entities servicing their litigation needs both defensively and offensively. Most claims relate to contract disputes, unfair business practices, interference and injunctive relief.
Approved as counsel for various D&O and E&O carriers to represent companies, Boards, Officers, Directors and Managers in various capacities for alleged corporate malfeasance including self-dealing, conflicts of interest, negligence and other violations of Business Judgment Rule.
Represented the owner of a medical spa in her suit against an employee and the employee’s cosmetic surgeon husband who set up a clandestine after hours cash-only side business which was the subject of a television interview.
Approved as panel counsel for numerous insurance carriers for large loss personal, commercial, excess and specialty lines. Successful in dismissing extra-contractual claims brought concurrently with personal injury cases based on favorable Nevada case law. Also appointed as litigation counsel for carriers alleged to have violated Nevada Unfair Claims Practices Act.
Association of Volleyball Professionals: Acted as general and litigation counsel for professional beach volleyball league for several years. Personally negotiated all contracts including player agreements, Tour endorsement and sponsor deals, television rights and advertising. Successfully prosecuted anti-trust/unfair competition claim on behalf of AVP players against FIVB—a sub-part of International Olympic Committee. Obtained mandatory injunction permitting players to compete on both AVP and international Tours. Handled all commercial litigation.