I believe in the collaborative dispute resolution process. But don’t get me wrong; I LOVE trial work. Some parties will never be transparent, and it’s so much fun to pit your wits against theirs! I once represented a couple who had purchased a truck stop just off the interstate.
The exit practically hand delivered customers to their front door. But a couple of years later, the Department of Transportation closed the exit. My clients were convinced that the prior owners had known this was to happen. They believed that these folks, who had sold them the truck stop, were fully aware of the pending closure.
Their reasoning made sense. After all, a great deal of planning precedes shutting down a federal interstate highway exit. The restaurant was highly profitable and the prior owners were not of retirement age.
We filed a complaint in state court. State law warns caveat emptor, “let the buyer beware,” when it comes to purchasing commercial real estate, but not if there’s outright fraud.
Discovery was slow going. It was like slogging through a marshy bog where mud threatened to suck the very boots off our feet. We struggled to get production of relevant documents from anyone, including from DOT. I finally scheduled the deposition there of “the person with knowledge of” closing down the exit. I set his deposition duces tecum. This required that person to produce any and all documents that had anything at all to do with the decision.
My clients were actively involved. Our scheduled deposition took place at the dilapidated three-story office building that housed DOT.
When I appeared to depose Eric Blackstone, its designated representative, Carmen met me in the second-floor lobby. At a mere five feet tall, she had the dark hair and olive complexion that I always associated with an Italian heritage. “Augie is working,” she explained. She carried a zippered padfolio stuffed with loose papers a quarter-inch thick. I recognized the paperwork. She brought it to every appointment. It was her file on the lawsuit.
When we announced ourselves to the matronly grey-haired woman manning the front desk, she asked, “Are you expected?” We were. She made a phone call using a quiet voice. After she hung up, she directed us to chairs. “You can wait over there until someone comes down to take you up.”
I asked, “Is our court reporter here yet?”
“Yes, indeed. She’s already set up in the conference room.”
The green vinyl chairs were uncomfortable, but we had little choice. Minutes passed while my client and I discussed additional questions that she wanted me to ask Mr. Blackstone.
The elevator chimed. When its doors slid open, it revealed Seth Salcines, my opposing counsel, briefcase in hand. He caught my eye, and, instead of approaching the receptionist, he strode over to us with his right hand extended. I stood and shook it.
When we were ushered into the conference room, Mr. Blackstone was already seated. I was surprised that he had no paperwork of any kind in front of him.
I immediately asked whether he had brought any documents. He smiled as he gestured behind him, through the glass wall of the conference room, to a wall of standard four-drawer file cabinets. “They’re full of the documents that you identify in your request.”
I clarified his comment. “Do we have your permission to look through those documents?”
“Yes, you can help yourself.”
There were actually three filing cabinets loaded with documents specifically responsive to our inquiry. I selected one, Carmen took one, and that left Seth with the third. Blackstone left us to our own devices, handing us each a pad of Post-it notes. “Just pull out the files and put a sticky note on anything you want a copy of. I’ll be back in an hour.”
Halfway through mine, hands grimy with dust mites, I discovered “the smoking gun.” It was a Xeroxed letter, signed in blue ink and addressed to the DOT. It was a form petition, in which the petitioner had handwritten her specific reason requesting that the agency to reconsider closing down the exit, “because it will force my restaurant out of business.”
The request had been executed by the seller’s wife.
The entire manila file in which the petition was buried was filled with similar entreaties. All were executed by the owners of the businesses surrounding the erstwhile interstate exit. Two of them had been signed by the seller himself and there was even one executed by the seller’s adult son, who worked in the diner. Each detailed the reasons that closing the exit would hurt their restaurant business.
My breath caught in my throat. I grew up with Perry Mason. I had heard of the proverbial “smoking gun,” but I had never expected to find one, to experience it. But that’s exactly what this was.
Seth’s parting comment to me was “I’m just glad that I wasn’t the one to find them. I don’t know what I would have done. I would hope that I would have disclosed them to you, but who the hell knows….”
We settled the case early the following week.
Need advice now? Contact Joryn!
About this week’s author: Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law while also serving as a full-time professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.
