Represented a nationwide pharmacy chain in a suit by a landowner for breach of contract for failing to open a store in a retail development.
The landowner sought damages in the high seven-figures, claiming that the absence of an anchor store at the locale resulted in overall business losses across the entire development. The contract clearly required that a pharmacy be built and opened at the location. However, the Willenken team methodically analyzed and parsed the contractual language and constructed a limitation on damages defense, arguing that the parties’ agreement waived consequential damages and restricted damages exclusively to the loss of rent. The client had continued to make its rent payments, so rent was never at issue in the lawsuit.
Willenken then filed a motion for summary judgment on the ground that the landowner had suffered no recoverable damages. While the motion was pending, the client made a further substantial settlement offer. The landowner rejected that offer, insisting that it was entitled to the far larger consequential damages that it demanded. The landowner guessed wrong: the court granted Willenken’s motion for summary judgment, and the order was affirmed on appeal.
By winning at summary judgment, the client completely prevailed on the lawsuit and was even awarded prevailing party attorney’s fees. Rather than obtaining a substantial settlement, the plaintiff owed Willenken’s client about $600,000 in attorneys’ fees—a complete reversal of fortune.