DLA Piper announced that Carey Gunn Venditti has joined the firm’s real estate practice as a partner in the Austin office.

Venditti advises investors, developers and owners of commercial, mixed-use, multifamily, office, retail, planned-community and condominium projects. She focuses her practice on the acquisition, disposition, financing and development of land and the purchase, sale, financing, leasing, operation and administration of income-producing properties, and has been involved in major projects representing both regional and national clients.

“Carey has an impressive real estate background and is well respected throughout the industry, particularly regarding mixed-use urban development and public-private partnerships,” said John Sullivan, chair of DLA Piper’s US Real Estate practice. “Texas continues to be an active market for our clients, and Carey will be a great addition to our Texas practice and our national and international real estate platform.”

“The Urban Land Institute recently named Austin as the top real estate market to watch, and Carey’s arrival reflects our commitment to this growing area and its diverse economy,” said John Gilluly, regional managing partner of DLA Piper’s Texas offices. “Adding a lawyer like Carey, who combines a strong drive and dedication with years of experience, will improve our ability to serve clients in Austin and throughout Texas.”

Venditti was recently selected to serve as the chair of the Austin District for the Urban Land Institute, an organization dedicated to providing leadership in the responsible use of land and in creating and sustaining thriving communities worldwide.

Venditti is the latest addition to DLA Piper’s Austin office, following Caryn Smith, who joined the firm’s Tax practice earlier this month. Venditti joins the firm from Greenberg Traurig where she was a shareholder. She received her J.D. from The Catholic University of America, Columbus School of Law and her B.A. from The University of Texas at Austin.

 
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Hogan Lovells announced that Lea Ann Fowler will join the firm’s Real Estate practice as a partner in the Denver office.

“Lea Ann has significant ties to the Denver real estate community and a notable reputation for representing prominent investors and lenders on highly complex matters,” said Mark Eagan, Hogan Lovells’ Head of Real Estate for the Americas. “Bringing Lea Ann on board deepens our national platform for our regional, national, and international real estate clients.”

Fowler represents a range of commercial lending institutions, developers, operators, and investors in real estate acquisitions and dispositions, joint ventures, development projects, asset-based lending involving loan origination, restructurings, loan participations, note purchases, and commercial mortgage-backed securitizations.

“I am excited about the opportunity to bring leadership to the Denver real estate team, mentor younger attorneys, and expand my client base nationally and internationally,” said Fowler.

In a release, the firm said:

Fowler has a highly regarded commercial real estate finance practice, representing clients in the origination of multimillion dollar senior and mezzanine structured financings secured by all sectors of commercial real estate, including hotel, mixed use condominium projects, retail, office and industrial portfolios. On the investor side, Fowler advises commercial real estate developers and private equity firms in the structuring and negotiation of large portfolio acquisitions and dispositions and multi-tiered construction and permanent loan transactions, including workouts and restructurings.

“Many of us at Hogan Lovells have known Lea Ann and worked with her for many years,” said Cole Finegan, Regional Managing Partner at Hogan Lovells. “We are very pleased that such a prominent real estate and finance lawyer will now be part of our local, national, and global efforts.”

Prior to joining Hogan Lovells, Fowler was a shareholder at Brownstein Hyatt Farber Schreck, LLP. She earned her J.D. from the University of Denver Sturm College of Law and her B.B.A. in Finance from Southern Methodist University.

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Buchalter announces the addition of new shareholder J. David Hitchcock to its Los Angeles office. Hitchcock joins Buchalter’s Real Estate practice from his previous role as partner at Kennerly Lamishaw & Rossi, LLP.

Hitchcock works in real estate acquisitions and dispositions, leasing, loan workouts and restructurings, loan sales, secured real estate finance, joint ventures, and general real estate matters. He has represented clients in cases involving private equity funds, real estate developers, core and value-add real estate owners/operators, public school districts, as well as publicly traded REITs.

Hitchcock received his B.A. with honors from the University of Chicago in 1993. He earned his J.D. from the University of Southern California Gould School of Law where he was Order of the Coif and Articles Editor for the University of Southern California Law Review.

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Akerman LLP announced the the addition of partners Allison Nelson and Lori Albert and associates William Garehime and Kelly Adams from Fennemore Craig to the firm’s Real Estate Practice Group.

In a release, the firm said:

“Growing client needs across the real estate and construction sector continue to drive the expansion of our practice,” said Richard Bezold, chair of Akerman’s Real Estate Practice Group, which is ranked sixth by Law360 among the largest teams of real estate lawyers in the United States. “Allison leads a highly skilled team who operate at the intersection of the real estate and healthcare economies. These lawyers add important depth to our national and local capabilities as shifting federal and state policy agendas produce new opportunities and challenges for our clients.”

“We are thrilled to welcome Allison and her team to the Denver office, where we have diverse practices in the financial services, real estate, healthcare and life sciences sectors,” said Justin Balser, Akerman’s Denver office managing partner. “Their deep experience in complex transactions and compliance investigations will provide immediate value to our clients in Denver and nationwide.”

Nelson focuses her national practice on the representation of public and private healthcare systems in complex real estate transactions and joint-ventures, and in mergers and acquisitions. She partners with clients to construct and improve legal, business, and compliance systems to manage their U.S. healthcare real estate portfolios and navigate through real estate compliance investigations by the U.S. Office of Inspector General. Nelson also regularly represents commercial developers in refinancing and acquisition of Colorado properties.

Prior to Fennemore Craig, Nelson was the chair of the real estate transactions practice group at Polsinelli where she served as lead real estate counsel in the $1.2 billion acquisition of a five-campus hospital system in Houston, Texas.

Albert represents national healthcare organizations, as well as Fortune 500 companies, developers, and investors in acquisition, disposition, and financing transactions involving all types of real estate. She has negotiated numerous leases, subleases, and other lease-related transactions for healthcare providers, and ensures such arrangements are compliant with the Stark Law, Anti-kickback Statute, and other federal and state healthcare regulations. In the community, Albert serves on the Denver Metro Chamber of Commerce Infrastructure Committee.

Real estate associates Garehime and Adams also principally focus their practice on healthcare real estate transactions. As a group, Nelson, Albert, Garehime and Adams are responsible for closing more than 500 healthcare leasing, development and acquisition projects annually across the United States.

Denver marks the latest growth for the firm’s Real Estate Practice Group. Akerman previously welcomed a real estate and land use team in Los Angeles led by partner Ellen Berkowitz from Gresham Savage; real estate litigation partner Michael Weiss from Lewis Brisbois in Los Angeles, hospitality litigation partner Joshua Bernstein from Pryor Cashman in New York and real estate transactional partner Thomas Diorio from Nixon Peabody in New York.

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A Travis County jury has returned a verdict against Chicago Title of Texas, LLC and other real estate-related businesses, finding they defrauded a young Danish woman of all proceeds from the sale of her $1.35 million condominium at the exclusive Residences at W Austin, according to a post on the website of Androvett Legal Media & Marketing.

The scheme involved a falsified power of attorney to execute contracts and closing documents in the sale of the condo, and a forgery in connection with a subsequent sale of a promissory note.

The Androvett post continues:

Mari-Louise Larsen, a Danish citizen, filed the breach of fiduciary duty and fraud claim in 2013 against her estranged husband, Andre Jones, an Austin-area resident, as well as Chicago Title and the other firms. Larsen, now 30, first met Jones in Austin’s Sixth Street entertainment district while visiting the area in 2007. After a long-distance courtship, the couple married in Denmark in 2009.

While in Denmark and waiting to move to Austin, Larsen testified she agreed to buy the luxury high-rise condo in Austin with funds from a family inheritance. However, Jones convinced her that Texas law required the names of both spouses to be on the title, despite the fact it was her separate property. Larsen and Jones later decided to divorce and sell the property. Jones then convinced Chicago Title’s contracted fee attorney, Wally Tingley, to use falsely notarized documents to close the sale without his wife’s knowledge. Jones pocketed all of the profits as the marriage deteriorated.

“This is a case of a con artist taking advantage of a wealthy young woman and actively working with others to violate the law and professional standards in the real estate industry,” said Larsen’s lawyer, Brian N. Hail of Gruber Elrod Johansen Hail Shank LLP in Dallas. “As acknowledged by Chicago Title and its fee attorney, this was one of the worst real estate transactions anyone has ever seen.”

Hail believes the jury’s finding that Chicago Title is responsible for the actions of its fee attorneys may have significant implications on future litigation involving the real estate industry.

“The jury finding that Chicago Title is vicariously liable for its fee attorney, due to the control it exerted throughout the entire transaction, may call into question the company’s entire business model of attempting to delegate closing and escrow responsibilities in the Texas market, and perhaps nationwide.”

In addition to Chicago Title and Jones, the Austin firm of Wally Tingley & Associates, P.C., and Austin-based JTREO, Inc. were found liable in the scheme.

Hail plans to file a proposed final judgment order of more than $3.7 million in Travis County’s 419th District Court. The order will be based on a request for all proceeds from the condo sale, in addition to pre-judgment interest and costs. Punitive damages were assessed against Jones in the amount of $2 million.

The case is Larsen v. Jones, et al., No. D-1-GN-13-004321. Ms. Larsen is represented by Brian N. Hail, Brian E. Mason, and Gaby Gutierrez Rawlings.

The Texas Supreme Court ruled that a pipeline company could take private property by eminent domain, answering the question of whether or not the pipeline qualified as a “common carrier” under the Texas Natural Resource Code, reports Snell & Wilmer L.L.P. in its S&W Environmental & Natural Resources law blog.

In the article, Rachel M. Lynn explains that, typically, the power of eminent domain is granted to governmental entities rather than private institutions. Under Texas law, however, a common carrier has the right and power of eminent domain.

“The test utilized by the court to determine [the pipeline company’s] common carrier status was whether or not the pipeline would serve the needs of the public, not only those of the builder,” Lynn writes. “To pass this test, the court noted, the pipeline would need to provide reasonable proof of a future customer.”

Read the article.

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Days before President-elect Donald Trump was to take the oath to uphold the Constitution, he followed through on a more painful obligation: coughing up $25 million to settle litigation over his defunct Trump University real estate seminar program, reports Politico.

Josh Gerstein reports that Trump University — now known as the Trump Entrepreneur Initiative — transferred the funds Tuesday night, according to two sources involved. The settlement provides enough money pay back about half of the funds paid by students for the seminars.

“Last March, Trump vowed not to settle the long-running litigation — two federal class-action fraud lawsuits and a parallel state court action brought by New York Attorney General Eric Schneiderman.” writes Gerstein. “The suits accused Trump U. of deceiving students by falsely claiming that Trump knew the instructors and that the school was an accredited university.”

Read the Politico article.

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In an article posted on Commercial Property Executive’s website, Elizabeth Levin of Manatt, Phelps & Phillips explores the implications of contracts and lease agreements pertaining to co-working and short term rental arrangements.

The central tenet of such agreements has not been tested in courts, Levin explains.

“Though the proprietors of co-working spaces and the owners of short-term rental properties have tried to make clear that these are not traditional landlord-tenant arrangements, that premise has not been truly tested, and the question of how a court would treat such an arrangement looms large over those drafting the contracts that govern these arrangements,” she writes.

Read the article.

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Stacey Lantagne uses a recent Florida case to illustrate the importance of specificity when drafting contracts.

Writing in her ContractsProf Blog, she outlines the history of Boardwalk at Daytona Development, LLC v. Paspalakis, “a case where the court, faced with an ambiguous description of the land at issue in a contract, just threw up its hands in frustration.”

The case involves a settlement agreement in a land dispute. The agreement failed to specify a legal description or street address for the property at issue. That failure came to light when Boardwalk conveyed a parcel — pursuant to the agreement — which the appellees found to be inferior to the one they expected to receive.

Read the article.

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While consumers may not have many choices when signing agreements that contain arbitration clauses, commercial parties often negotiate every last term of their agreements, according to a post on Shutts & Bowen LLP‘s website.

“This includes whether to require the parties to arbitrate their disputes or take them to court. There are advantages to each, so here are five things to consider when deciding whether to include an arbitration clause in a real estate contract, such as a purchase and sale agreement or lease,” write Al LaSorte, Matthew R. Chait and Matthew S. Sackel.

Those considerations include time, money, convenience, discovery and rules. The authors discuss the finer points of each one.

Read the Shutts & Bowen article.

Two new opinions, one from the San Antonio Court of Appeals and one from the El Paso Court of Appeals, again tackle the task of construing mineral and royalty conveyances and reservations, reports John McFarland in his Oil and Gas Lawyer Blog.

He explains that many such cases have arisen as a result of recent shale plays, where lands never before productive have suddenly become valuable, leaving courts have to clear up muddy deed language.

In his blog post, he discusses Laborde Properties, L.P. v. U.S. Shale Energy II, LLC and Greer v. Shook.

Read the article.

The trustee for a bankrupt company decided to drop his lawsuit after watching his expert witness cross examined by an attorney from Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.(AZA), clearing AZA’s clients of claims that they received fraudulently transferred company assets, the firm reports in a news release.

Rodney Tow, trustee for the estate of the Peterson Group Inc., a Houston real estate development company, had watched AZA’s John Zavitsanos examine his expert witness over whether Peterson Group was solvent and what company assets remained. The legal dispute involved a series of shopping centers and other properties worth more than $30 million.

The night of the expert’s failed testimony Tow informed Zavitsanos that he was completely dropping the case, which was in the third week of trial to a jury in the 269^th District Court in Harris County.

See a video and read about the case.

An office lease is a pivotal tool for small law firms to attract better clients and expand their practices. But it is also frequently a small firm’s largest fixed capital expense and longest commitment. Negotiating favorable lease terms is critical to ensure that a lease contributes to, and does not hamper, a firm’s success, writes Laura Drossman of Drossman Law in San Francisco.

Small firms may not be able to compete financially with their market competitors, who will pay higher rents and prepaid rent upon demand, according to her article, originally published by the Bar Association of San Francisco. Failure to maintain adequate financials brings creditworthiness into question and kills tenant’s leverage in lease negotiations.

While base rent and escalations seem like an obvious starting point, due to sky-high demand and flush competition, prospective tenants better serve their interests by focusing on other points.

Those points can include space improvements, commencement date, pass-through costs and tempering spikes, security deposits and letters of credit, subleasing and assignment, maintenance costs and HVAC, and relocation rights.

Read the article.

Quarles & Brady LLP announced that Chicago partner Everett S. Ward has been appointed by Illinois Governor Bruce Rauner to serve as a public member of the Real Estate Administration and Disciplinary Board.

“I’m extremely honored to have been appointed by Governor Rauner and to have the opportunity to represent consumer interests,” said Ward. “I’m looking forward to working with the board in any capacity that I can.”

The READ Board consists of three public members who represent consumer interests, six real estate brokers or managing brokers, and an Illinois Department of Financial & Professional Regulation (DFPR) real estate coordinator. Prior to appointment, all board members must have held residency in Illinois for six years.

“We are so proud of Everett,” said Chicago Office Managing Partner Paul L. Langer. “He is a great fit for the READ Board and we are grateful that he is representing Quarles & Brady.” Ward is a member of the firm’s Real Estate Practice Group, where he represents corporate, commercial, and not-for-profit clients in the acquisition, disposition, financing, and leasing of commercial, industrial, and residential real property. He is AV® Peer Review Rated by Martindale-Hubbell, has been named an Illinois Super Lawyer®, and was named a 2015 Business Leader of Color by Chicago United.

He received his bachelor’s degree from Princeton University and his law degree from Harvard Law School.

A Denver judge has fined one of the city’s prolific foreclosure attorneys $1.8 million for billing thousands of consumers facing the loss of their homes for title-insurance policies that did not exist, reports The Denver Post.

David Migoya writes that the Colorado Attorney General’s office argued in a seven-day trial in February had alleged in a February trial that Robert Hopp Jr., while working at his now-defunct law firm, billed customers fighting foreclosure for policies that were never issued. And Hopp inflated the cost of the few that were, the AG’s office claimed.

“The 37-page judgement handed down last week by Denver District Judge Shelley Gilman is the latest in a number of cases the state filed in 2013 against lawyers that specialized in foreclosures and allegedly padded their bills for costs that were ultimately borne by consumers losing their homes, the banks foreclosing on them and taxpayers whose federal insurance agencies covered the costs,” according to the report.

“Homeowners facing foreclosure had no choice but to pay the costs in order to stop the foreclosure process, and there was no process in place to challenge any of the fees lawyers said they were owed,” Migoya writes.

Read the article.

In St. John’s Holdings, LLC v. Two Electronics, LLC, the Massachusetts’ Land Court concluded (in what appears to be a case of first impression) that a string of text messages can constitute a writing under the Statute of Frauds sufficient to bind the parties to sell certain property, writes Matthew DeVries on Burr & Forman LLP‘s Best Practices Construction Law blog.

DeVries explains in the article: The transaction involved included four drafts of a letter of intent from Buyer to Seller for purchase of a piece of property, none of which were signed by Buyer. Ultimately, Seller’s agent texted Buyer’s agent, asking him to sign the letter and provide a deposit. About two hours later, after Buyer signed the letter and provided a deposit, Buyer’s agent sent a text to Seller’s agent saying he had signed the letter of intent. The two agents met later that day to deliver and accept the letter and deposit, and the seller’s agent sent a text saying the Seller was unavailable and would respond the next day. But it was determined later that the Seller accepted a third party’s offer to purchase the property at the same time, and refused to execute and deliver the letter of intent from the original Buyer.

“The court concluded that the text message from Seller’s agent was a writing that, read in the context of the email exchanges between the parties, contained sufficient terms to state a binding contract between Seller and Buyer. In addition, the court found that the final text message contained a valid electronic signature to be ‘signed’ within the meaning of the law,” DeVries explains.

Read the article.

It is becoming common for more and more transactions to be created, negotiated, finalized and executed electronically, according to an alert from Arnall Golden Gregory LLP. From a real estate perspective, virtually all documents other than those that are being recorded are exchanged electronically.

The article addresses whether, and under what circumstances, contracts executed via the internet or otherwise are enforceable under applicable federal and state laws.

Topics covered include e-signatures, the applicability of general contract principles, and commercial real estate agreements.

The conclusion is that “it is clear that binding real estate transactions have been and will continue to be conducted via electronic transfer of signatures.”

Read the article.

When Beck Redden partner and appellate specialist Connie Pfeiffer led the charge to overturn a Fifth Circuit decision, the path to victory was nearly certain to be long and arduous, the firm said in a release.

The Fifth Circuit had just decided a critical question interpreting the Texas Constitution, holding that homeowners with constitutionally defective liens on their homestead must file suit to set the lien aside within four years of originating a home equity loan.  (See Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 674 (5th Cir. 2013).  Yet overturning Priester would prove challenging, because out-of-state lenders could usually remove Texas homeowner suits to federal court, where Priester was binding.

The release continues:

Beck Redden was first hired to handle a homeowner’s Fifth Circuit appeal immediately following Priester and to seek the Fifth Circuit’s certification of the Texas constitutional questions, even though the Fifth Circuit rarely certifies a question it has already decided.  The Fifth Circuit adhered to that policy, holding that it could not revisit Priester or seek the Texas Supreme Court’s guidance.  In the wake of Priester, nearly all homeowner suits were removed to federal court and promptly dismissed.

Beck Redden was then hired in one of the few cases remaining in state court.  It stepped in mid-way in an appeal before Houston’s Fourteenth Court of Appeals, but the court fell in step with the growing line of cases following Priester and dismissing homeowner claims as time-barred.

At last in the Texas Supreme Court, Beck Redden handled every aspect of the briefing, argument, and strategy.  Connie Pfeiffer authored the briefs and presented oral argument, working with her appellate partner Russell S. Post and trial lawyers Chip Lane and Anh Thu Dinh of The Lane Law Firm.

The Texas Supreme Court voted 6 to 3 to overturn the Fifth Circuit’s decision in Priester and five Texas appellate decisions reaching the same holdings (See Wood v. HSBC Bank USA, N.A. ___ S.W.3d ___ (Tex. May 20, 2016).   The Majority followed the Constitution’s plain text to hold “that liens securing constitutionally noncompliant home-equity loans are invalid until cured and thus not subject to any statute of limitations.”  The practical effect of the Supreme Court’s decision is that homeowners will not face foreclosure unless their lender has complied with the Texas Constitution to create a valid lien.  The decision upholds the Constitution’s careful protections for homeowners by ensuring that invalid liens do not become valid and enforceable merely with the passage of time.

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It is possible to be mistaken about the existence or terms of an agreement and for that mistake to thereby prove that no contract exists, writes Glenn West in Weil, Gotshal & Manges LLP’s Global Private Equity Watch.

As a general rule, being mistaken about whether you contracted, or what you contracted for, does not mean that a contract does not exist based upon the terms of the written agreement you signed. A party’s protestations that he or she did not understand the agreement, or believed it said something other than what it said, or that the words used in the agreement meant something other than what they are determined by a court to mean, will generally not be entertained by a court,” he wrote.

He discusses the case of Patterson v. CitiMortgage, Inc., which illustrates that “a unilateral mistake made by a party that is not made manifest to the other party will not be a basis for reformation because, absent knowledge of the mistaken belief, the other party is entitled to rely on the written agreement as manifesting the intentions of the otherwise mistaken party.”

Read the article.