Lawyers sued by buyers of ice cream franchise

February 10, 1994|By Alan J. Craver | Alan J. Craver,Sun Staff Writer

An Ellicott City couple have charged a Baltimore law firm with legal malpractice in a civil suit they filed over the alleged mishandling of their purchase of a Hillary's Ice Cream franchise at the Mall in Columbia.

Paul Ziegelbaur and his wife, Gita Ziegelbaur, of the 10200 block of Berkshire Lane, are seeking $1 million in damages from Weinberg & Green in a civil lawsuit filed Feb. 1 in Howard Circuit Court.

The lawsuit lists as defendants 69 lawyers at Weinberg & Green, but singles out Lewis Jay Ulman and Joseph Kempler, who worked at the firm's Columbia office in the 10400 block of Little Patuxent Parkway.

Mr. Ulman and Mr. Kempler left Weinberg & Green in April 1992 and now work for the firm of Hodes, Ulman, Pessin and Katz in Columbia.

The Ziegelbaurs opened their Hillary franchise in October 1991, but lost the franchise when the Pennsylvania-based chain went out of business. The Ziegelbaurs now call their shop Paul's Gourmet Ice Cream.

They contend in the lawsuit that Weinberg & Green and its lawyers had a duty to protect their interests through complete reviews of franchise documents, taking into account all possible scenarios.

"The defendants breached each and every duty owed to the [Ziegelbaurs]," the lawsuit says.

Rand Gelber, a Rockville attorney for the Ziegelbaurs, declined to comment on the allegations in his clients' lawsuit. The Ziegelbaurs have been advised against talking about the case.

Mr. Kempler said he advised the couple against buying the Hillary franchise, calling it a "bad deal."

"They're looking for a scapegoat," Mr. Kempler said. "They're not going to find one here. . . . We know we didn't do anything wrong."

He noted that the defendants named in the lawsuit agreed to extend the three-year statute of limitations for filing civil cases to allow the Ziegelbaurs time to investigate the matter.

Mr. Kempler noted that the firm represented the Ziegelbaurs when they bought a Taco Maker franchise for the Columbia Mall in 1989 without any problems.

Deborah Shortridge, spokeswoman for Weinberg & Green, declined to comment on the lawsuit, noting that the firm has not yet been served with the complaint.

According to the lawsuit, the Ziegelbaurs first met with Mr. Kempler -- assigned to their case by Mr. Ulman -- on Aug. 14, 1990, to discuss the Hillary franchise. The couple gave the attorney a lease, franchise agreement and other documents to review.

The couple, relying on the advice of the attorneys, signed the lease and franchise agreement and paid Hillary $165,000 for the business 10 days after the first meeting, the lawsuit says.

But the Ziegelbaurs later learned that the attorneys failed to obtain and review certain documents, such as a lease agreement for the Hillary franchise and the company's provisions for delayed openings, the complaint says.

The attorneys also failed to set up an escrow account for the Ziegelbaurs to pay contractors for construction of the franchise site to avoid mechanic's liens in case of a delayed opening, the fTC lawsuit says.

Mr. Gelber noted that liens totaling more than $20,000 have been lodged against the Ziegelbaurs.

Because of Weinberg & Green's actions, the Ziegelbaurs lost income because of the delayed opening of their franchise, spent money on legal fees and ultimately lost the Hillary franchise, the lawsuit says.

Meanwhile, the Ziegelbaurs have pending in U.S. District Court in Baltimore a civil case against Hillary, its corporate chairman and six company employees. The proceedings have been stayed pending arbitration between Hillary and the couple.

The Ziegelbaurs are asking the federal court for restitution for the money they spent on the Columbia franchise, charging Hillary and corporate officials with fraud, racketeering and negligence.

They contend that Hillary, of Broomall, Pa., and its employees violated Maryland's franchise laws as part of a scheme to get people to buy franchises and then leave them with numerous expenses for the construction of the ice cream shop.

The Ziegelbaurs have requested a jury trial for their Howard County lawsuit. The case has been assigned to Judge Dennis M. Sweeney, but no proceedings have been scheduled.

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