Zerger & Mauer LLP v. City of Greenwood

The law firm Zerger & Mauer LLP (Zerger) (defendant) represented the City of Greenwood (Greenwood) (plaintiff) in a public-nuisance suit against Martin Marietta Materials (Martin). The suit concerned Martin’s rock-quarry truck traffic on city roads. The parties ultimately settled, with Martin agreeing to pay Greenwood $7 million and Greenwood agreeing to designate Second Avenue for truck traffic. Greenwood believed that Second Avenue was the truck-traffic route most beneficial for the city. In the settlement agreement, Greenwood declared that the truck traffic on Second Avenue was reasonable and did not constitute a nuisance. After Zerger’s representation of Greenwood had ended, 18 persons with property interests on Second Avenue hired Zerger to represent them in a private-nuisance action against Martin in which the property owners sought damages for Martin’s truck traffic on Second Avenue. Greenwood moved to disqualify Zerger from representing the property owners in the action. It argued that Zerger had a conflict of interest because the present action required Zerger to argue that Martin’s traffic on Second Avenue constituted a nuisance. Greenwood claimed that argument directly conflicted with Greenwood’s interests in the earlier litigation, in which Greenwood chose Second Avenue as the route for truck traffic and declared the traffic was not a nuisance. The district court agreed and disqualified Zerger. Zerger appealed.