Fight between firefighters and lawyers continues in East Amherst

The HoganWillig law firm, now known as Tiveron Law, continued to say the case was not ready for trial even as it continued to send more legal bills to the volunteer fire company.

Now, two decades after the firefighters first requested aid, they are fighting for hundreds of thousands of dollars. Tiveron says he’s still owed that money from a lawsuit the law firm abandoned.

The case pits Swormville’s 45 active firefighters against one of the area’s largest law firms, and one unafraid to take to the courts to recover unpaid attorney fees.

“This whole thing is so frustrating. I don’t understand it,” Stephen Moeller, Swormville’s former president and longtime board member, said in an interview. “It’s like we’ve gotten into bed with the devil and can’t get out.”

Fire company officials say they want to get back to serving their community and see the legal standoff end. They accuse HoganWillig of mishandling the case from the beginning and say they were only able to resolve the case two years after another firm took over.

But managing partner Diane Tiveron staunchly defended the law firm’s efforts, calling the lawsuit against Swormville an ordinary legal billing dispute unworthy of media attention.

“We did a great job and tried to protect our rights on behalf of a customer who chose not to pay for this,” he told The Buffalo News.

Swormville, a volunteer fire company in East Amherst and Clarence, decided in the early 2000s that the department needed a new, modern building to replace its outdated firehouse on Transit Road.

Fire company, 6971 Transit and Picone Construction Corp. hired K2M Architects to design the new facility, which will build the 17,000-square-foot structure in Clarence. Work began in the spring of 2003 and was largely completed a year later.

Fire company officials said in court filings that they quickly discovered problems resulting from “defective” design and construction.

Moeller said the roof was leaking and damaged by an ice dam due to heat loss; the firewall separating the truck bays from other areas was not built up to code; the floor of the concrete truck was not cured properly; and the bay door supports were not strong enough to hold the energy efficient doors.

Swormville officials turned to Steve Cohen, an attorney and firm member, to represent their legal interests. Moeller said in his affidavit that Swormville did not have a retainer agreement with Cohen.

Cohen filed a complaint against K2M and Picone in 2007, seeking $1.26 million in damages plus interest.

The case remained active two years later when the law firm of Lorenzo & Cohen merged with HoganWillig.

Cohen told the Swormville board in March 2011 that the case was scheduled to be heard in January 2012.

But in November 2011, HoganWillig’s Corey Hogan told board members that the law firm needed a “strategic plan” for the case and that he was seeking a postponement because he “did not believe the case was ready for trial.” another Swormville official, Michael Belcher.

The fire company said the case regularly passed from one HoganWillig attorney and paralegal to another, requiring architect Kenneth Pearl, one of several experts retained by Swormville, to brief each new staff member.

Belcher and Moeller said HoganWillig billed the fire company for its services, even though Swormville said it had no service contract and the firm did not provide monthly invoices.

According to the fire company, HoganWillig offered to reduce his fees by 50% considering the time spent on the case, but his invoices did not include details about whether this occurred.

The firm and the fire company reached a retainer agreement in 2012, but Swormville fire officials said they were disappointed with how the case went.

“This has never been a priority for them. It was a money shake. They were using this to generate revenue from us,” Moeller said.

The hostility was mutual, according to a 2015 email a HoganWillig attorney sent to a colleague and cited in court documents.

Referring to Hogan, the attorney wrote: “Corey backed down on their behalf and they don’t appreciate it. They are ungrateful and overly critical complainers.”

This came to a head at a meeting on August 31, 2015, where Swormville board members sought solid answers regarding billing and case status concerns.

According to Belcher and Moeller, Hogan backtracked in anger when asked whether the case was too big for his company, blaming the fire company for the delays. When asked how close the case was to going to trial, Hogan said “40%.”

Finally, according to a meeting recording, Hogan said, “I’m not taking that (expletive) from you. Who do you think is harassing us? “We’re getting out of here.”

Thereupon, the HoganWillig team left the hall.

A day later, Hogan sent an email to the Swormville board stating that the relationship between the parties had “irretrievably broken down.” He defended his firm’s work in light of the complexity of the case and the need for indisputable expert testimony to support the magnitude of the fire company’s claim: some $1.9 million for a building that cost $2.3 million.

Swormville authorities approached Kenney Shelton Liptak Nowak to obtain their claims against Picone, K2M and third-party defendants.

Moeller and attorney D. Charles Roberts Jr. said HoganWillig left the case file in disarray and pursued a flawed strategy that did not take into account how much insurance the architect and builder carried to cover a settlement.

In all, Roberts, the fire company’s last attorney, said he billed more than 30 attorneys, paralegals and other HoganWillig staff for their work on the case.

“I don’t think the case needs to be as complicated as it was for HoganWillig,” he said. “A convincing strategy was required from the beginning and then acted upon.”

Less than two years later, in 2017, Kenney Shelton’s attorneys settled the lawsuit with Picone, K2M and various subcontractors for $1.3 million.

Anthony Picone, president of family-owned Picone Construction, said his firm followed the architect’s designs to the letter and the fire company did not raise any concerns until after the incident.

He said the court fight cost Picone $300,000 in attorney fees and a $400,000 settlement, but the company still stands behind its work on the firehouse.

“We didn’t do anything wrong,” Picone said. “This job was perfect.”

K2M attorney Michael Damia declined to comment beyond saying K2M does not admit wrongdoing in the settlement.

The settlement amount was initially considered confidential, but HoganWillig disclosed the figure in a later court filing.

The fire company paid $900,000 in litigation costs, including expert and attorney fees. HoganWillig had collected $251,577, which included down payments to Lorenzo & Cohen.

When HoganWillig learned of the deal, the firm tried to prevent the fire company from receiving payment. Roberts argued that he was entitled to 20 percent of the “net recovery.”

When that ultimately failed, HoganWillig sued the fire company in 2019. The firm is seeking $332,625 in additional fees, Roberts said.

The state Supreme Court judge ruled that HoganWillig gave up any claim to the settlement money when he dropped the lawsuit. Tiveron is appealing this decision.

Swormville filed several countersuits accusing HoganWillig of overbilling, “lawyer fraud” and other misconduct.

Cohen declined to be interviewed but said his membership in the fire company distanced himself from the billing dispute.

“I don’t represent my law firm because I think it’s weird to say the least,” he said in his text message.

Hogan did not respond to voicemail and email messages seeking comment.

But in a statement to the Clarence Bee in 2021, Hogan said his firm had “taken great measures both to manage litigation costs and to reassure the Swormville Fire Company that HoganWillig was doing everything in its power to bring the matter to a resolution.”

The state Supreme Court Appellate Division, Fourth Circuit, in December 2022 barred Hogan from practicing law for two years because judges concluded that Hogan had confused a client’s business with HoganWillig’s finances. The decision, unrelated to Swormville, required Hogan to sell his HoganWillig ownership stake.

Tiveron took control of the renamed firm. The case changed hands over the years, he said, but HoganWillig adjusted the fee structure to ensure it was fair to the fire company.

He said HoganWillig provides Swormville with the best legal representation possible and that it is not uncommon for such business cases to take years to resolve.

“This was a construction case with a lot of moving parts,” Tiveron said.

Moeller said the approximately $421,000 the fire company received from the settlement, after litigation costs, did not cover the cost of repairs to the fire hall.

Swormville’s budget comes from fire protection contracts with the towns of Amherst and Clarence.

Moeller said the fire company has had to delay purchasing updated equipment and reduce training for new firefighters because of its spending on litigation and building repairs.

He added that he and his colleagues in Swormville are just volunteers who want to serve their community, which is even worse than having the court fights go on for so long.

“I’m absolutely disgusted,” he said. “I had faith in the legal process, and I don’t anymore.”