Staying Afloat

Every company hopes to avoid investments that sink. But what happens when your company literally starts to sink? 

In 2006, Brent Nistler, then an associate at Reinhart Boerner Van Deuren in Milwaukee, was part of the team that tried a case against the Metropolitan Milwaukee Sewerage District on behalf of Bostco LLC, which owned Boston Store. For years, groundwater had been seeping into a tunnel built 260 feet underground by MMSD, causing the soil beneath the retailer’s building to shift and sink—and the building along with it. In 2006, a jury awarded Bostco $9 million in damages, which would later be reduced by statutory cap to $50,000. It would spend nine more years in appeals courts, including the state supreme court in 2013, before the case ultimately settled in 2015 at $6 million in damages.

In 2004, another client came to Reinhart with the same issue—their potato-packing plant was sinking. By 2008, Nistler decided to start his own firm, Nistler Law Office.

“I kind of grew up in that family business culture, so I was very comfortable with it,” says Nistler, whose entrepreneurship was inspired by his dad, a sole-practitioner dentist. “When you see your parent do something and succeed, it gives you sort of a level of confidence that you can do that, too.” 

Reinhart let Nistler take the sinking-plant case with him. Now known as Pre-Pac, the plant sat on top of the same deep tunnel system as Boston Store, which MMSD built in 1989. MMSD got an easement to build the tunnel, and Nistler explains that the plant owner at the time sold his rights and his underground for a dollar so MMSD could do so. 

The tunnel is designed to hold sewage and rainwater during a storm, but it’s not air-tight. “All that dirt that’s between the tunnel and the ground has moisture in it; and, because of gravity, [that moisture] leaks into the tunnel, and that causes the soil to compress and the building to have trouble.” 

Along with sinking into the ground, the building also suffered widening cracks, another sign of problems underground. In the time leading up to the trial, engineers surveyed the building with crack monitors and Nistler also looked at the easement agreements between Pre-Pac and MMSD, which promised to take care of anything that happened to the property.

From the Boston Store case, Nistler knew which major experts he needed: a civil engineer, Richard Stehly, to explain how the leaking tunnel caused the soil to compress, damaging the building; a soils consultant, Steve Jaques, to explain how to repair the foundation of the building and the related costs; and a structural engineer, Lavern Nall, to testify along with Jaques as to the overall repair costs. Along the way, Nistler also became somewhat of an expert himself—he learned the complexities of damages, an area he hadn’t fully explored before the case.

“One of the issues that really became front and center in the case, both at the trial level and court of appeals level, is: How are damages measured? Do you look at repair costs or comparable building costs?” Nistler says. “Both cases were very, very expert driven, and what the case was really about was expert testimony.” 

After a week-long trial that was upheld on appeal, the plant was awarded what Nistler hoped: $1.08 million. It breaks down into $443,670 for damages to the foundation and $592,644 in repairs for settlement from the soil.  

Amidst the trial, Nistler also had to keep afloat his own law firm, which he started with a tax return and the help of his wife. “One thing that I can’t stress enough is that I didn’t have a law partner, but my wife was essentially my business partner, and did a ton of behind the scenes work,” Nistler says. She still works at the firm as bookkeeper and office manager. 

Nistler thinks the question preventing other lawyers from starting their own firm is, “Am I going to get business?” But, he says, it all boils down to one thing: relationships. “It’s the relationship-based kind of referrals [I receive]. A lot of the issue is just having the confidence to pull the trigger and do it.”