Denise Wachholz has been a trial attorney in Arizona for more than 30 years and is sought after for her skills representing clients in the areas of construction, environmental and professional liability litigation. Having spent much of her career working in the construction/engineering industry, Denise is able to apply years of experience to her client’s matters to thoroughly – and cost-effectively – craft successful strategies to win, or avoid litigation.

In addition to her construction clients, Denise has a long track record of successfully representing architects, engineers (including civil, geotechnical, structural, mechanical and HVAC-design engineers), general contractors, subcontractors (including building, soils and landscaping trades), developers, accountants and mortgage/title companies. Denise has handled cases including public projects such as a football stadium, convention center and municipal airport, as well as a 1400-home subdivision in north Scottsdale, and commercial, industrial, multi-family, luxury residential, and infrastructure projects.

When working with her clients, Denise’s primary objective is to terminate the client’s participation in the lawsuit as quickly and inexpensively as possible. Where an early exit strategy is not available, she strives to minimize damages to which the client has exposure (by motion, expert opinion, or development of the facts for trial) and to position the client for a swift, favorable resolution. She understands the specific challenges posed to clients in the construction industry, and is relied upon for business-oriented legal guidance.

PUBLICATIONS

Author, “Arizona Supreme Court Decision Helps CRE Developers,” AZRE Magazine, June 2017

“Arizona Supreme Court Refocuses the Economic Loss Rule for Construction Cases,” August 2013

“The Successful Defense of Design Professionals,” September 2011

Co-Author, “ALFA International 50 State Compendium of Construction Law Issues,” 2011

Regional Editor, “ALFA International 50 State Compendium of Construction Law Issues,” 2007, 2009, 2011

Author, “An Irreverent Look at Highway Proximity Damage Decisions,” Southwestern Legal Foundation Annual Institute on Planning, Zoning and Eminent Domain, 1993

Co-Author, “When Eminent Domain ‘Working Rules’ Don’t Work,” Appraisal Journal, 1991

Course Materials for Presentations Listed Below

PRESENTATIONS

“‘If You Build It, They Will Come’: Defect Claims – Emerging Trends and Strategies for Success,” Co-Moderator, Faculty and Steering Committee Member, ALFA International Construction Practice Group, July 2014

“Smartwater: Emerging Technologies and Trends in Water Treatment, Provisioning and Infrastructure,” ALFA Construction Law Practice Group Seminar (Steering Committee, Faculty Member, and Moderator), July 2012

“The Successful Defense of Design Professionals,” Defense Research Institute Construction Law Seminar, September 2011

“Designing the Successful Defense for Claims Against Architects and Engineers: The Economic Loss Rule,” ALFA International Construction Conference (Steering Committee, Faculty Member, and Panelist), San Francisco, July 2010

“Design Alliance Revisited,” Maricopa County Bar Association, June 2010

“The Economic Loss Doctrine after Flagstaff Affordable Housing: Its Impact on Owners, Designers and Builders” (panelist), Construction Law Section, State Bar of Arizona, April 2010

“Recent Decisions Involving the Economic Loss Rule and Design Professionals,” Construction Section, Maricopa County Bar Association, November 2009

“Common Law and Statutory Indemnity,” ALFA International Construction Practice Group Seminar (Steering Committee, Faculty Member and Panelist), July 2008

“Architect/Engineer Liability,” Lorman Seminars, January 2008

“Common Law Indemnity in Construction Defect Litigation,” Arizona Association of Defense Counsel, September 2007

Course book materials available on request.

ACHIEVEMENTS

Construction – Significant Cases Overview

  • Dismissal affirmed by Arizona Supreme Court for Architect in Owner’s lawsuit claiming ADA violations at large multi-family project designed by client. The trial judge granted motion to dismiss based on the economic loss rule and statute of repose. The Arizona Court of Appeals reversed. The Arizona Supreme Court reinstated the trial judge’s dismissal by published decision treating construction law issues of first impression in Arizona. See Flagstaff Affordable Housing L.P. v. Design Alliance, Inc., 223 Ariz. 320, 223 P.3d 664 (2010)
  • Dismissal achieved for Subcontractor which designed and installed the metal exterior of the University of Phoenix NFL stadium. Subrogated Property Insurer brought a multi-million dollar federal district court lawsuit to recover the cost of repairing storm damage alleged to be the result of design and construction defects. The district court granted motion to dismiss based on subrogation waivers in the prime contract and subcontract. The Ninth Circuit affirmed the dismissal, agreeing with the district court that the subrogation waivers remained in force after construction was completed. Travelers Indemn. Co. v. Crown Corr, Inc., 589 Fed. Appx. 828 (9th Cir. 2014). (2014)
  • Favorable Settlement at mediation for Construction Manager for large hotel resort project in complex state court lawsuit alleging $40 million in water and mold damage throughout the hotel related to alleged defective construction of 950 guestroom showers and stucco exterior. After successful motion practice, wrap carrier’s settlement contribution for Construction Manager under 5 percent of global payment. (2014)
    Favorable settlement at mediation obtained for Geotechnical Engineering Firm in state court case alleging defects in MSE wall constructed for mountainside residence. (2014)
  • Dismissal and award of attorneys’ fees obtained for Concrete Subcontractor in state court case brought by general contractor which alleged subcontractor poured defective slab. (2015)
  • Averted State of Arizona’s threatened lawsuit against Architectural Firm which designed university dorm project. Student injured leg that broke through dorm shower glass. State intended to sue client for indemnity from the personal injury damages, plus cost of replacing all shower glass in the dorm project. Identified provisions in design contract that precluded indemnity, after which State ceased its pursuit of client. (2010)
  • Dismissal achieved for Framing Subcontractor in Owner’s state court lawsuit alleging construction defects in luxury residence. The lawsuit, which asked for $350,000 to repair the alleged defects, was dismissed on motion asserting that claim was precluded by lack of privity between Owner and Subcontractor. (2013)
  • Favorable settlement achieved for Geotechnical Engineering Firm in Retail Owner’s federal district court lawsuit against multiple engineers and contractors. The suit asked for $20 million in damages resulting from failure of an MSE wall exceeding 65 feet in height. The matter settled favorably in mediation after the development of contractual and causation defenses. (2013)
  • Settlement for Architectural Firm in Owner’s federal district court lawsuit for over $20 million in damages alleged to have been caused by delay during construction of $600 million expansion of the Phoenix Convention Center. (2009)

Professional Liability – Significant Cases Overview

  • Summary judgment for law firm in four consolidated state court actions brought by buyers of over 500 acres of land
    alleged to be landlocked as the result of defective easement document. (2014-2015)
  • Global real estate services firm and two appraisers were sued in lawsuit brought by the Buyer of 1,000 acres of undeveloped land in Cochise County, Arizona which client appraised. A second lawsuit was brought by hard-money lender secured by a deed of trust on the appraised property. The Buyer and Lender collectively alleged over $7.0 million in damages. Cost of defense settlement reached in both lawsuits after motions for summary judgment heard in Buyer’s lawsuit, and after favorable pretrial ruling on motion brought in Lender’s lawsuit that decreased the damages Lender could recover at trial. (2012)
  • Appraiser/Client sued for $14.0 million in damages collectively sought in two lawsuits by hard-money lenders with deeds of trust on two appraised properties. Case settled favorably for client based on cost of defense considerations for less than 3 percent of amount claimed, after theory developed to limit damages recovery, and dispositive motions on liability filed. (2012 and 2013)
  • Developer and loan investors sued appraisers for $5.0 million allegedly lost due to clients’ appraisals of three tracts of vacant land in Cochise County, Arizona; settled for under 10% of amount claimed, after defenses to liability and damages developed. (2014)
  • Part of defense team that reached favorable settlement for one of several Accounting Firms sued in class action by 13,000 investors claiming over $483 million in damages after State of Arizona issued a cease and desist order to Baptist Foundation of Arizona. (2002)

Environmental Liability – Significant Cases Overview

  • Favorable settlement achieved for General Contractor/Construction Manager of a 950-room hotel/resort project in a state court lawsuit brought by the Owner and multiple Subrogated Property Insurers against client and subcontractors. The lawsuit sought $40 million in damages resulting from mold discovered throughout the hotel, allegedly caused by water penetrating from 950 guestroom showers, and exterior stucco system. A favorable settlement was reached at mediation after judgment obtained for Client on Subrogated Carriers’ claims. Settlement contribution allocated to Client was less than 5 percent of global settlement payment. (2014)
  • Dismissal achieved for Environmental Engineering Firm with EPA contract for pre-remediation investigation of a Superfund mine and smelter site. Drilling subcontractor filed a federal district court lawsuit after client terminated subcontract. Motion to dismiss granted for client based on plaintiff subcontractor’s failure to comply with Arizona licensing requirements. (2014)
  • Summary judgment obtained on claim for punitive damages in lawsuit for personal injury resulting from catastrophic release of anhydrous ammonia with plume reaching at least 5 miles from release site; second chair at state court jury trial on damages; $500,000 compensatory damages verdict after plaintiff refused to settle below multi-million demand. (2002)

Complex Commercial Litigation – Significant Cases Overview

  • Dismissal obtained in three months for hotel developer, after four years of litigation by client’s former attorneys, in lawsuit brought by buyer of franchised hotel in Texas who claimed over $1.8 million in damages resulting from the client’s construction of the hotel. Dismissal granted on motion heard on eve of trial based on release overlooked by client’s former counsel in settlement agreement reached in prior litigation in Texas. Client awarded $265,000 in attorneys’ fees. (2009)
  • Dismissal obtained for bank and its CEO in lawsuit by bank’s largest shareholder who claimed $8.5 million in damages alleged to have resulted from the mishandling of a large loan for development of a spring training baseball facility. Costs of protracted litigation avoided by obtaining dismissal at inception of case.

Reported Decisions

  • The Travelers Indemnity Co, as subrogee of Arizona Sports & Tourism Authority, v. Crown Corr, Inc., 2011 WL 6780885 (D. Ariz. 12/27/2011), affirmed by Ninth Circuit at 589 Fed. Appx. 828 (9th Cir. 2014) (dismissal affirmed on appeal for client/subcontractor alleged to be responsible for design and construction defects resulting in storm damage to NFL stadium roof and exterior)
  • Flagstaff Affordable Housing v. Design Alliance, 223 Ariz 320, 223 P.3d 664 (2010) (dismissal affirmed by Arizona Supreme Court for client/Architect in case alleging ADA violations at multi-family project)
  • Maxfield v. Martin, 173 P.3d 476 (Ariz. App. 2007) (title company – payment of mortgage funds to imposter) Schwarz v. City of Glendale, 950 P.2d 167 (Ariz. App. 1997) (eminent domain)
  • City of Phoenix v. Mangum, 912 P.2d 35 (Ariz. App. 1996) (eminent domain)
  • City of Phoenix v. Leroy’s Liquors, Inc., 868 P.2d 958 (Ariz. App. 1993) (eminent domain)

HONORS AND AWARDS

Top Lawyers (Construction Litigation), Arizona Business, 2009, 2013, 2014
Martindale-Hubbell AV-Rated

DENISE J. WACHHOLZ,  SHAREHOLDER

PRACTICE AREAS

Construction Litigation (Firm Practice Group Chair)
Professional Liability Litigation
Appeals

PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS

State Bar of Arizona
Defense Research Institute
ALFA International: Steering Committee Member, Construction Law Practice Group, 2006-present

BAR ADMISSIONS

Arizona, 1987
U.S. District Court, District of Arizona, 1988
U.S. Court of Appeals, Ninth Circuit, 2012

EDUCATION

Arizona State University, J.D., cum laude, 1987
Arizona State University, B.S., Business/Real Estate, magna cum laude, 1983: Beta Gamma Sigma
Phoenix College, A.A., Legal Assistant, with highest distinction, 1979

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