Overview

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.

Education

• Kent State University
  • Bachelor of Arts, Political Science
• Cleveland-Marshall College of Law
  • Juris Doctor

Admissions

• Ohio
• United States District Court, Northern District of Ohio
• United States District Court, Southern District of Ohio
• United States Sixth Circuit Court of Appeals

Awards

• Martindale Hubbell Peer Review Rating of AV Preeminent
• Ohio Super Lawyers 2015-2020

Activities

• Cleveland Metropolitan Bar Association, Member
• Ohio Stated Bar Association, Member

Articles

• "COVID-19 Business Interruption Insurance Claims: Time is of the Essence," co-author, McCarthy Lebit COVID-19 Blog, May 2020
• "Dispute Resolution Commission Begins Issuing Advisory Opinions," McCarthy Lebit COVID-19 Blog, April 2020
• "Dispute Resolution Commission Established to Determine Essential Businesses," McCarthy Lebit COVID-19 Blog, April 2020
• "Updated Summary of Ohio's Stay at Home Order," McCarthy Lebit COVID-19 Blog, April 2020
• "Summary of Ohio's Stay at Home Order," McCarthy Lebit COVID-19 Blog, March 2020
• "Business Insurance Coverage During the COVID-19 Pandemic," McCarthy Lebit COVID-19 Blog, March 2020
• "Noncompete Agreements Are Popular, But Not Always Enforceable," Crain's Cleveland Business, October 2019

Presentations

• COSE Webinar: Business Interruption Insurance - Time is of the Essence, Greater Cleveland Partnership

Experience

Received Judgement Affirmation in Favor of Client

The 8^th 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. 8^th Dist. 2018).

Representation in Asset Purchase Agreements

Representation of buyers and sellers in asset purchase and stock transactions.

Representation in Real Estate Purchase Agreements

Representation of buyers and sellers in real estate transactions.

Representation in Manufacturing and Supply Agreements

Represented manufacturing companies in numerous manufacturing, supply and distribution agreements.

Obtained Judgment in favor of Lender for $565,000

Obtained summary judgment in favor of purchaser of accounts receivables in the amount of $565,000.

Obtained foreclosure on Commercial Property, Order Denying Broker Fees and Reducing Receiver Fees

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. 8^th Dist. 2010).

Obtained Judgment in Favor of Lien Holder for $517,000

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 Judgment in favor of Landlord for $708,334.92 and $1,500,000

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 Judgment in the amount of $242,000 for lender

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 the amount of $57,000 for lender

Obtained judgment in favor of Plaintiff commercial lender against debtor corporation and individual guarantor in the amount of $57,395.94 plus interest.

Successfully Defended Port Authority in National Historic Preservation Act Litigation

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 Defense Judgment for Homeowner in Construction Project

Obtained jury verdict in favor of homeowner in an action for damages brought by residential construction contractor.

Obtained Judgment in the amount of $395,000 for Homeowner in Construction Project

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 Injunctive Relief

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 $52,000 Judgment for Title Company

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, 8^th Dist. Court of Appeals, 2011 Ohio 5268.

Defended Municipality in Zoning Dispute

Following three-day evidentiary hearing, obtained trial court judgment in favor of the City of Middleburg Heights and sustaining denial of use/area variances.

Settled Appropriation Case for $90,000

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

Settled appropriation case for $54,000 after state offered less than $3,000 as initial offer.

Settled Appropriation Case for $3,500,000

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 and NBA Arena in Multi-Million Dollar Construction Contracts

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.

Obtained Reinstatement of Attorney Fee Award of $1,050,000

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).

Successfully Defended Owner of Major League Baseball Park in First Amendment Case

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 (6^th Cir. 2004).

Successfully Defended City of Cleveland in Public Bidding Dispute

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).

Obtained Writ of Prohibition on Behalf of Mayor of Cleveland in First Amendment Case

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 $169,317 Arbitration Award for Misappropriation of Trade Secrets

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 $185,000 Judgment for Securities Fraud

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.

Successfully Argued Before Ohio Supreme Court on Municipal Court Costs

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 Berea Municipal Clerk of Court before Ohio Supreme Court

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, 8^th Dist. Ct. Appls. Case No. 97537; affirmed by Ohio Supreme Court, 2014-Ohio-1052.

Successfully Defended County Coroner in Class Action

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 $608,750 Arbitration Award in Favor of Licensee

Obtained arbitration award for licensee in the amount of $608,750.00 plus AAA costs and Arbitrator fees.

Obtained Defense Verdict in Action to Pierce the Corporate Veil

Obtained defense verdict in favor of former shareholder and employee in action seeking to pierce the corporate veil.

Defense of Non-Compete Agreements

Successfully defended actions for preliminary and permanent injunctions on behalf of employees in trade secret, non-compete and non-solicitation complaints

Enforcement of Non-Compete Agreements

Successfully obtained preliminary and permanent injunctions on behalf of employers in trade secret, non-compete and non-solicitation complaints

Obtained Reversal of Arbitration Award

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

$1.3 Million Jury Verdict for Retaliation and Breach of Contract

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.