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February 2011

Las Vegas Partner Robert Schumacher Wins Motion for Summary Judgment for General Contractor

The Las Vegas Partner Robert E. Schumacher won a Motion for Summary Judgment in Clark County District Court on behalf of their Las Vegas general contractor client.  After winning the Motion for Summary Judgment, Gordon & Rees also prevailed on a Motion for Attorney's Fees and costs. 
The dispute stemmed from the construction of a multi-million dollar custom estate at the base of Sunrise Mountain with a view overlooking the Las Vegas valley.  The owners hired the general contractor who secured the necessary permits and undertook the typical steps to start construction.  The general contractor also referred an architect for the project, and the two obtained a height variance on behalf of their client (the homeowner) to build the house 3 feet in excess of the 36' Clark County Code limitation.  The owners and general contractor agreed to part ways due to financial considerations before completion of the project.
During the framing phase, the owners' adjacent neighbors took issue with the height of the home.  They claimed the excess height intruded on their privacy and blocked the view of Sunrise Mountain and the Las Vegas valley.  The neighbors initiated an administrative complaint challenging the variance with the Clark County Board of Commissioners.  A settlement was purportedly reached between the parties, and the administrative complaint was dismissed.  However, the neighbors subsequently filed a lawsuit in Clark County District Court against the homeowners.  The complaint was amended to add the general contractor (Gordon & Rees's client), its principal, and an employee who were involved in obtaining the height variance and whom the neighbors claim had engaged in notarial fraud as part of the zoning variance application process.  Plaintiffs sought monetary damages for diminution in value of their property, interference with their quiet use and enjoyment of the property, nuisance, trespass and other related claims.  Plaintiffs also unsuccessfully sought injunctive relief initially in the form of halting construction.  After completion of the home, plaintiffs sought a mandatory injunction requiring the removal of the top three feet of the home.  Acrimonious litigation ensued.
After two years of protracted litigation including an interim appeal related to the requested injunctive relief, Gordon & Rees filed a Motion for Summary Judgment on behalf of its client, the general contractor, its principal, and the employee.  Essentially, the motion argued that the owners' revision of the plans after commencement of construction superseded the actions of Gordon & Rees's client in obtaining the variance and overseeing construction.  Gordon & Rees argued that since the plaintiff neighbors could not show any legal causation between the alleged conduct (including fraud) and the plaintiffs' alleged damages, the court should grant summary judgment.  The court agreed and granted summary judgment for Gordon & Rees's clients.
Following the granting of summary judgment, Gordon & Rees filed a Motion for Attorney's Fees and Costs pursuant to prevailing party statutes and offers of judgment that were made early in the case.  As a consequence of the plaintiffs' failure to accept the offers of judgment, the court awarded the general contractor all of its fees from the time of the offers of judgment, as well as all of its costs. 

Robert E. Schumacher