Over $1.3 Million Judgment Awarded To Son In Montgomery County Civil Trial

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Judgment Comes After Seven-Day Bench Trial

On July 16, 2009, the Circuit Court for Montgomery County, Maryland, denied a motion by defendants to amend a judgment in a case in which the Court had entered judgment against them for $1,374,486.85. The Court had previously, on July 10, 2009, denied a motion by the defendants requesting a new trial. On May 22, 2009, the Court issued the judgment in favor of entrepreneur Benson Fischer in a business dispute against Sheldon and Ann Fischer, Benson's parents.

The judgment came after a seven-day bench trial before The Honorable Mary Beth McCormick. The plaintiffs, Benson and Mona Fischer, were represented at the trial by Geoffrey T. Hervey and Christine Sindall Pugh of the law firm of Bregman, Berbert, Schwartz & Gilday, LLC, of Bethesda, Md.

According to Mr. Hervey, the business dispute involved the ownership of a company called Coin X Change, LLC, which Benson and Sheldon formed in 2004 for the purpose of installing and managing coin counting machines in supermarkets. As the Court noted, however, it was Benson who conceived of the idea and the business itself. In his suit, Benson alleged that, although the ownership of the company was put solely in his father's name, the understanding was always that Benson and his wife, Mona Fischer, owned 50% of the company. During the trial, according to Mr. Hervey, the evidence showed that Benson toiled at the business for several years on a daily basis. Eventually, however, Sheldon refused to recognize his son's interest in the business, and he sold the company to their main competitor, Coinstar, Inc, for $4.35 million. After Sheldon refused to share any of the profits generated from the operation of the company from 2004 through 2006, Benson and Mona Fischer sued Sheldon and Ann Fischer to recoup 50% of the amount of the company's distributions.

Judge McCormick found that Benson had proved his case, and she entered judgment against Sheldon on the theory of quantum meruit, finding that a contract in fact existed between the parties, even though it was not an express contract. The Court found that "even according to his father, Benson has much energy." The Court found that "Benson identified the business, investigated it, created it, designed it and was a part of making the contacts that retained their first account" with Shoppers Food Warehouse. The Court also concluded that, "it is clear that Benson Fischer did a great deal of the work necessary to start up this business. He developed the marketing plan, found potential customers, and did mass mailings. His efforts were relentless. He worked tirelessly with . . . the machine manufacturer, to refine the remote communications software. Once the business was up and running, Benson was largely responsible for the day-today workings of the business. When there were service calls for the machines, Benson was the 'go to' guy. He was on call 24/7."

The Court concluded that the idea that Benson was to receive zero from the company was not plausible. The Court held: "The notion argued by Sheldon's counsel that his adult son was working for free for his father is not plausible, given the facts of this case. The tireless work that Benson did in the start up and in the servicing of this business supports that this was a joint business venture and that they would all be financially rewarded in the end." The Court also found that Ann Fischer, Sheldon's wife and Benson's mother, wrongfully retained and enjoyed the benefits of the sale of the company, holding the "Sheldon made the money and she spent it."

The Court entered judgment against Ann Fischer under the theory of unjust enrichment. The defendants were represented at trial by Roger C. Simmons and Matthew S. Johnson of the firm of Gordon & Simmons, LLC of Frederick, Md. The case is Benson Fischer et al. vs. Sheldon Fischer, et al., case number 276599V. A separate cross-claim filed against the defendants by Coinstar, Inc. for indemnification is scheduled to go to trial in September.

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Dan Baum
DBC PR + New Media
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