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August 2020

Las Vegas Team Prevails on Summary Judgment to Defeat Mold Claims

Las Vegas Office Managing Partner Robert Schumacher and Senior Counsel Brian Walters, assisted by Paralegal Cristina Pagaduan, recently obtained complete dismissal of a mold-related property damage lawsuit initiated by a prominent Nevada mold attorney for the firm’s client, the nation’s largest private owner and operator of manufactured home communities.

The plaintiffs leased a manufactured home from the firm’s client subject to the client’s manufactured home lease agreement (“Lease”).  The Lease contained a one-year limitation on action provision which required claims to be filed within “one year of the initial actionable event or occurrence giving rise to the lawsuit.”  The plaintiffs’ complaint included two expert reports detailing the existence of mold in the plaintiffs’ manufactured home and alleging resultant property damage.

Evidence revealed that the plaintiffs’ experts discovered the existence of mold more than one year before the plaintiffs filed their complaint.  Based on this evidence, Walters prepared a motion for summary judgment on the client’s behalf in which he argued that the plaintiffs’ claims were time-barred pursuant to the one-year limitation provision in the Lease.

In response to the client’s motion, the plaintiffs argued that the one-year limitation provision was contrary to public policy because it was inconsistent with Nevada six year statutory limitations period for breach of written contract.  The plaintiffs also submitted an affidavit in which they fabricated facts about alleged “unusual circumstances” surrounding the signing of the Lease to support an argument that the Lease was unconscionable.

During a lengthy hearing, Walters convinced the court that the one-year limitation provision set forth in the Lease was not contrary to public policy or Nevada statutes of limitations because it “nevertheless provide[d] sufficient time to effectively pursue a judicial remedy” in accordance with recent Nevada Supreme Court case law. Walters also convinced the court that the plaintiffs’ affidavit alleging unusual circumstances surrounding the signing of the Lease was suspect and did not render the Lease unconscionable.  The court ultimately granted the client’s motion for summary judgment, resulting in complete dismissal of the plaintiffs’ claims.           

The Lease also included a prevailing party attorney’s fees provision.  The Las Vegas team filed a motion to recover all of the client’s attorneys’ fees and costs.  The client and its insurance carrier are thrilled with the result.

Robert E. Schumacher
Brian K. Walters