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At Munger Chadwick, we consider it a personal privilege to have the opportunity to work with a community of clients representing a wide range of business issues and interests. While our clients regularly celebrate the many accomplishments that we have chalked up on their behalf, whether in the courtroom or before a regulatory or administrative body, we know the legal challenges they face are shared by many other individuals and businesses as well.
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MUNGER CHADWICK, P.L.C., PROUDLY WELCOMES
RETIRED JUDGE TED BOREK TO THE FIRM
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MUNGER CHADWICK, P.L.C. is proud to announce that former Pima County Superior Court
JUDGE (Ret.) TED B. BOREK has joined the firm as its newest partner in our Tucson office. Ted is well-known to the Pima County legal community for his nearly fourteen years of service on the Arizona Superior Court in Pima County, where he earned a strong reputation for fairness, a keen understanding of the law, and an ability to quickly master the facts and issues in the most complicated litigations. Ted now offers his services as a skilled mediator and arbitrator, and is available to hear all types of civil disputes.
Having been on the Civil, Criminal, and Juvenile Benches, Ted conducted nearly 200 jury trials and has been a settlement judge for more than 100 cases. For a period as the Civil Settlement Coordinating Judge he managed the Court’s ADR program and conducted related Continuing Legal Education (CLE) programs in mediation for the bar and pro tem judges. He has addressed dispositive issues in hundreds of cases and trials including personal injury, wrongful death, medical malpractice, contracts, product liability, insurance bad faith, personnel law, employment discrimination, corporate disputes, agency, real property, easements, condemnation, forfeiture, homeowner disputes, fraud, construction disputes, liens, and injunctions.
Ted’s interest in ADR preceded his appointment to the Bench. As an Assistant U.S. Attorney in Tucson from 1990 to 2000 he participated in Advanced ADR Programs with the Department of Justice. He also conducted, or participated in, training with the American Bar Association, State Bar, Pima County Bar, Straus Institute for Dispute Resolution at Pepperdine University School of Law, and Our Town Family Center, Tucson, where he conducted community mediation sessions.
We sincerely welcome Ted Borek to the Munger Chadwick family. We invite you to contact Ted if you are in need of an experienced, knowledgeable, and objective arbitrator and mediator. He can be reached at our Tucson office, at 520-721-1900.
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CLARK WATKIN, OF COUNSEL TO MUNGER CHADWICK, P.L.C., OBTAINS $650,000 PERSONAL INJURY VERDICT FOR CLIENT
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Clark Watkin, Of Counsel to Munger Chadwick, P.L.C., obtained a significant win for his client, a real estate agent who suffered traumatic injuries from a fall at house she was trying to sell for its owners. On previous visits to the house, a 22-inch wide and 6-foot deep “cistern” dug into the floor of the breakfast room—which Mr. Watkin’s client had not known about—had always been covered and was unnoticeable. However, on the day Mr. Watkin’s client was injured, one of the owners’ workers had cleaned it out and failed to replace the cover. Mr. Watkin’s client fell backward into the hole and was severely injured, resulting in permanent damage to her leg.
Mr. Watkin argued that, as a business invitee, his client was owed the highest level of care by the property owner, and that the owner was were liable for the negligence of her worker and for the creation of an unreasonably dangerous condition. In addition to the extremely painful and permanent injury she suffered, Mr. Watkin’s client incurred roughly $75,000 in medical expenses and $25,000 in lost earnings as a result of the accident. After settlement and mediation efforts proved fruitless, Mr. Watkin and his client took the case to trial. The jury deliberated for less than two hours and returned a verdict in favor of Mr. Watkin’s client for
$650,000, with only minor adjustment for apportionment of responsibility.
Clark Watkin and The Watkin Law Office, P.C. are Of Counsel to Munger Chadwick, P.L.C. You may contact The Watkin Law Office at 480-347-9804 or visit
www.watkinlaw.com for more information.
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MR. CHADWICK PREVAILS
ON NON-DISCHARGEABILITY COMPLAINT
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Mark Chadwick recently prevailed at trial in an adversary proceeding in the Bankruptcy Court for the Eastern District of Virginia. On behalf of his client, Mr. Chadwick obtained a judgment against the debtor for over $192,000, establishing that the debt was non-dischargeable pursuant to the “false pretenses” and “actual fraud” prongs of Section 11 U.S.C. 523(a)(2)(A). In addition, Mr. Chadwick persuaded the Court that a Chief Executive Officer of a corporation acts as a “fiduciary” under 11 U.S.C. § 523(a)(4). There is a split of authority on whether a corporate officer is a fiduciary under an “express” or “technical” trust under Section 523(a)(4).
In a result with interesting implications for future litigation, the Bankruptcy Court held that the debtor was a fiduciary under Section 523(a)(4). In so holding, the Court noted that the question depends on federal common law, but state law is relevant to the inquiry. Pointing to the Indiana law (the state of incorporation), which does impose a fiduciary duty upon corporate officers, the Court held that a CEO qualifies as a fiduciary under Section 523(a)(4). Depending on the circumstances, proving a defalcation while acting as a fiduciary might present fewer evidentiary obstacles than proving “actual fraud” under Section 523(a)(2)(A).
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MR. CHADWICK PREVAILS IN TRUST LITIGATION
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In a recent trust litigation case involving a trust with over $4 million in assets, Mr. Chadwick obtained an extremely favorable settlement on behalf of his seven individual clients, including the Trustee, against a multi-billion-dollar health care conglomerate. The declaratory judgment action featured multiple claims and counterclaims involving disputes over the entire corpus of the trust. Several legal issues raised have implications for trust litigation generally, particularly concerning revocable trusts. The conglomerate challenged decisions by the trustee, seeking to invalidate gifts under a pre-death amendment of the trust document. Mr. Chadwick’s clients counterclaimed to establish the validity of the gifts and decisions of the trustee, invoking the No-Contest Clause in the trust. After a year and a half of intense litigation, the conglomerate effectively surrendered at the settlement conference. Indeed, Mr. Chadwick’s clients ended up in the exact same position they were in before the litigation began with no out of pocket costs for attorney’s fees and costs.
Among the issues was whether the conglomerate forfeited its interest under the No-Contest Clause and whether “probable cause” existed for the challenges under the Court of Appeals’ decision in
In re Estate of Shumway, 198 Ariz. 323, 9 P.2d 1062 (2000) and
In re the Shaheen Trust, 341 P.3d 1169 (App. 2015). Munger Chadwick, PLC represented the trustee in the
Shaneen Trust case.
Another key issue in the case involved the absence of pre-death duties to beneficiaries under a revocable trust pursuant to A.R.S. § 14-10603(A). Mr. Chadwick’s clients took the position that because the trust was revocable, the trustee owed no duties whatsoever to the contingent beneficiaries, including fiduciary duties or duties to account to the beneficiaries for pre-death decisions. In the absence of such duties, contingent beneficiaries have no right to challenge pre-death decisions or obtain an accounting for pre-death decisions.
The case also involved the issue of whether an attempted amendment that does not satisfy all the technical requirements for amending the trust might be valid as a power of appointment under the Restatement (Second) of Property and case law.
Greenwood v. Peterson (In the matter of Strobel), 149 Ariz. 213, 217, 717 P.2d 892 (1986)
Although the settlement posture precluded final judgment on the parties’ claims, the arguments merit facilitated the favorable result.
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MR. CHADWICK WINS
JURY TRIAL IN CONSTRUCTION CONTRACT CASE
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In a construction case involving the improper installation of an air conditioning unit, Mr. Chadwick obtained a jury verdict in favor of his homeowner client against one of the largest air conditioning contractors in Arizona. The jury delivered the verdict after a four-day jury trial in which Mr. Chadwick presented evidence establishing that the contractor failed to meet its standard of care in connection with its installation of the air conditioning unit, including the contractor’s failure to properly seal the ducts.
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