David M. Cuppage is a Principal at McCarthy Lebit. He has a diverse litigation and transactional practice, which includes commercial, business, employment, debtor/creditor, real estate, title insurance, construction, municipal and environmental litigation, white collar criminal defense, and general corporate, real estate, and commercial transactional law.
David’s litigation practice includes business, uniform commercial code, lending, factoring and creditor rights, employment (including wrongful discharge and non-compete agreements), real estate and land use, construction, municipal, and commercial litigation including intellectual property (copyright, trademark, trade secret and unfair competition), in state and federal trial and appellate courts, and before administrative agencies.
His real estate, land use and environmental practice includes representation, counseling and litigation in federal and state courts and before administrative agencies, boards, commissions and other quasi-judicial bodies. He is experienced in all aspects of real estate and land use litigation, including title, RESPA, eminent domain, annexation, zoning and other local regulations and in environmental litigation, including CERCLA, RCRA, Clean Water Act, National Historic Preservation Act and other state and local environmental statutes. He is also experienced in advising, negotiating, counseling and conducting due diligence on real property and business acquisitions and transactions involving land use and environmental issues.
General counsel services include representation, counseling, due diligence and negotiations in general business and corporate matters; commercial lending, factoring and debtor/creditor rights; employment issues; financing and factoring transactions; intellectual property prosecution, protection, transfers and licensing; negotiating and drafting close corporation agreements, partnership and limited liability company agreements, stock and/or asset purchase agreements, real estate purchase agreements, construction, manufacturing, distribution and employment contracts.
The 8th District Court of Appeals affirmed a judgment in favor of his client, SMS Financial 30, LLC, against an individual debtor on a personal guaranty notwithstanding that the underlying corporate obligation under a business equity line of credit agreement was discharged by failure to submit a timely claim in accordance with R.C. 1701.87. SMS Financial 30, LLC v. Harris, 2018-Ohio-2064 (Ohio App. 8th Dist. 2018).
Representation of buyers and sellers in asset purchase and stock transactions.
Representation of buyers and sellers in real estate transactions.
Represented manufacturing companies in numerous manufacturing, supply and distribution agreements.
Obtained summary judgment in favor of purchaser of accounts receivables in the amount of $565,000.
Obtained summary judgment in favor of lender, foreclosure on commercial property and orders denying application for broker fee, substantially denying receiver’s counsel’s fee, denying motion to show cause, affirmed on appeal. Variable Annuity Life Ins. v. 113 St. Clair, LLC, 2010 Ohio 5373 (Ohio App. 8th Dist. 2010).
After obtaining an order for the appointment of a receiver and obtaining summary judgment against the tenant in the amount of $517,000 in favor of holder of mechanics lien, on motion to substitute plaintiff (new plaintiff consisted of mechanic’s lien holders who assigned their liens to single purpose LLC) and to waive deposit granted, obtained an order confirming sale to substitute plaintiff with credit bid granted, and took deficiency judgment in the amount of $217,502 and $104,401.23. Substitute Plaintiff then took over leasehold interest and is now running the sports park.
Obtained summary judgment in favor of landlord against tenant in default of lease and guaranty in the amounts of $708,334.92 and $1,500,000.
Obtained summary judgment in favor of purchaser of accounts receivables in the amount of $19,000 against judgment creditor and $242,000 against debtor.
Obtained judgment in favor of Plaintiff commercial lender against debtor corporation and individual guarantor in the amount of $57,395.94 plus interest.
Obtained judgment finding no private cause of action against a non-federal defendant under the National Historic Preservation Act in the case captioned Committee to Save Cleveland’s Huletts v. U.S. Army Corp of Engineers, et al., U.S. District Court, Northern Division of Ohio (2000), Case No. 1:99 CV 3046, 163 F.Supp.2d 776.
Obtained jury verdict in favor of homeowner in an action for damages brought by residential construction contractor.
Obtained summary judgment for breach of contract in favor of homeowner in the amount of $395,000 against residential construction contractor.
Successfully defended action for preliminary and permanent injunction in action alleging interference with former employees non-compete agreement. Chicago Title Insurance Company v. Resource Title Agency, Inc., U.S. Dist. Court, N.D. Ohio Case No. 1:09 CV 01063.
Obtained summary judgment in favor of title company in the amount of $52,000 in damages for attorney fees. Affirmed on appeal. Solomon v. Harwood, 8th Dist. Court of Appeals, 2011 Ohio 5268.
Following three-day evidentiary hearing, obtained trial court judgment in favor of the City of Middleburg Heights and sustaining denial of use/area variances.
Following successful writ of mandamus to compel appropriation action, recovered $90,000 for taking, plus permit to alter hillside in appropriation matter.
Settled appropriation case for $54,000 after state offered less than $3,000 as initial offer.
Settled appropriation case for $3,500,000 as a total take, including $2,300,000 for purchase of materials at the property, after State denied a total take and deposited approximately $250,000.
Represented owner of major league ballpark, basketball and hockey arena, and common areas in multi-million dollar construction contracts, purchase and installation contracts, and design-build contracts.
Successfully represented company in action to vacate arbitration award of $7,450,000 and obtained reversal and reinstatement of a $1,050,000 attorney fee award in case captioned Automated Tracking Systems, Inc. v. Great American Insurance Company, 130 Ohio App.3d 238 (1998).
Obtained judgment denying a preliminary and permanent injunction in action alleging violation of First Amendment Rights against a private corporation owning a major league baseball facility in the action captioned United Church of Christ v. Gateway Economic Development Corporation of Greater Cleveland, U.S. District Court, Northern Division of Ohio (2000) and (2001), affirmed in part, reversed in part, and remanded, 2004 FED App. 0291P (6th Cir. 2004).
Successfully obtained reversal of trial court judgment against City by Court of Appeals which found that the City properly awarded a public contract. City of Cleveland ex rel. O’Malley v. Mayor Michael White, 148 Ohio App.3d 564 (2002).
Successfully obtained alternative writ of prohibition enjoining trial court from enforcing a temporary restraining order against the Mayor of the City of Cleveland. State ex rel White v. Kilbane Koch, 94 Ohio St. 3d 1409 and 96 Ohio St.3d 395 (2002).
Obtained an arbitration award in favor of corporation against former employee and new employer in the amount of $169,317.95 for misappropriation of trade secrets.
Obtained summary judgment and default judgment in favor of investor on securities violations, breach of contract, and promissory notes in the amount of $185,000.
Obtained decision before Ohio Supreme Court in favor of City on issue of court costs. City of Middleburg Heights v. Quinones, Supreme Court Case No. 2007-, 2008 Ohio 6811, 120 Ohio St.3d 534.
Successfully defended a Municipal Court Clerk of Court before the Ohio Supreme Court in class action alleging improper collection of court costs. Michael Lingo v. State of Ohio, Ray Wohl, Berea Municipal Court, Case No. CV 05 564761; reversed and remanded, 2012-Ohio-2391, 8th Dist. Ct. Appls. Case No. 97537; affirmed by Ohio Supreme Court, 2014-Ohio-1052.
Successfully defended Cuyahoga County Coroner in Section 1983 Action based on alleged due process right to return of decedent’s brain and other vital organs retained by coroner during autopsies. Albrecht v. Treon, Ohio Supreme Court Case No. 2008-2617, 118 Ohio St.3d 348 2008 Ohio 2617
Obtained arbitration award for licensee in the amount of $608,750.00 plus AAA costs and Arbitrator fees.
Obtained defense verdict in favor of former shareholder and employee in action seeking to pierce the corporate veil.
Successfully defended actions for preliminary and permanent injunctions on behalf of employees in trade secret, non-compete and non-solicitation complaints
Successfully obtained preliminary and permanent injunctions on behalf of employers in trade secret, non-compete and non-solicitation complaints
Successfully obtained court order vacating arbitration award in favor of employee against employer. Linda Short v. Resource Title Agency, Inc., Cuyahoga County Court of Common Pleas, Case No. 726337, affirmed on appeal 2011-Ohio-1577; affirmed further on appeal 2014-Ohio-830
Obtained plaintiff verdict in the amount of $1,365,718 on breach of employment agreement and retaliatory discharge, which was reduced to account for damages caps to $628,227, then reversed by the Court of Appeals to reinstated damages in the amount of $728,227. Dr. Paul Matus v. Lorain County General Heath District, U.S. Dist. Court, N.D. Ohio, Case No. 01:13 CV 01029; affirmed in part, reversed in part and remanded, Court of Appeals Case Nos. 16-4054 and 16-4094.