Promenade Shops court case continues with a malpractice claim

DENVER — It’s been two years since the U.S. Court of Appeals, 10th Circuit, upheld a jury verdict in the case that pitted McWhinney Real Estate Services Inc. against its partners in the development of the Promenade Shops at Centerra. 

The case ended with a negotiated settlement between McWhinney and partner Dan Poag; the other partner, Terry McEwen, lost at trial and on appeal. The court held him partially responsible for fraudulent acts and awarded 15% of the $156 million in damages.

McEwen, of Florida, continued to argue over the case including the determination of court costs and interest. Judge Brooks Jackson determined those amounts in September 2021.

While that ended the case for McWhinney, it wasn’t over for McEwen. On April 28, he filed a malpractice suit against his attorney, Richard Kaufman, who practices law in Centennial as The Law Office of Richard C. Kaufman PC Inc. The law firm lists a residential address with the Secretary of State. Kaufman is the twin brother of retired Loveland attorney William Kaufman.

McEwen alleges that Kaufman was ill-prepared for trial, relied too heavily on Poag’s attorneys who were not available when the trial began, failed to offer a meaningful defense including use of the statute of limitations and failed to apply the correct laws to the case.

In a lengthy review of relevant facts, McEwen’s attorney, Randall Spencer of Provo, Utah, lays out the case for why McEwen was not a party to fraudulent acts and suggests that McWhinney’s knowledge of key information occurred much earlier than disclosed at trial. As a result, the statute of limitations should have applied, but Kaufman did not raise that defense until too late in the process, the court filing said.

McEwen quoted Kaufman’s personal notes as saying he wasn’t prepared to go to trial when Poag settled on the morning of the trial, thus making Poag’s attorneys unavailable to help with the defense.

The malpractice claim said that McEwen suffered economic losses of $5.5 million — the amount of a negotiated settlement with McWhinney after the appeal — as well as non-economic damages.

BizWest was unable to reach Richard C. Kaufman directly or indirectly through his brother. 

The case, filed in Denver District Court, is Terry McEwen v. Richard Kaufman and the Law Office of Richard C. Kaufman PC Inc., 2023cv31268.

Source: BizWest