In re DH Overmyer Telecasting Co., Inc.
| Decision Date | 26 August 1987 |
| Docket Number | Bankruptcy No. B81-00506,Adv. No. B84-0561. |
| Citation | 77 BR 128 |
| Parties | In re D.H. OVERMYER TELECASTING CO., INC., Debtor and Debtor-In-Possession. ROBSON, MILLER & OSSERMAN, et al, Plaintiffs, v. D.H. OVERMYER TELECASTING CO., INC., Defendant. |
| Court | U.S. Bankruptcy Court — Northern District of Ohio |
Alan M. Petrov, D. Cheryl Atwell, Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, for plaintiffs.
John Silas Hopkins, III, Thomas R. Lucchesi, Jennifer L. Belt, Baker & Hostetler, Cleveland, Ohio, Special Counsel for defendant-debtor.
This matter came on for hearing on the claim of the plaintiff, Robson, Miller & Osserman, and the objection and counterclaim of defendant, D.H. Overmyer Telecasting Co., Inc. ("Telecasting").
1.1 The Telecasting Chapter 11. On February 6, 1981, Telecasting filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. ?? 1101, et seq. (Telecasting Chapter 11 Docket, 2/6/81 Entry, Deft. Ex. 54) Pursuant to sections 1107 and 1108, Telecasting retained possession of its assets and continued in the operation of its business as a debtor-in-possession. On April 25, 1986, the Court entered an order confirming Telecasting's amended plan of reorganization. (Telecasting Chapter 11 Docket, Entry 1421, Deft. Ex. 54)
1.2 The Robson Firm's Proof of Claim. On March 23, 1981, Robson & Miller, a New York partnership comprised of Morton S. Robson and Kenneth N. Miller, filed a proof of claim in this case, seeking payment of $45,596.12 "for legal services rendered and expenses incurred" on behalf of Telecasting by Robson & Miller and its predecessor firm, Robson & Toboroff, between June, 1977 and January 31, 1981. (Robson Firm Proof of Claim, Deft. Ex. 38) The only "support" for Telecasting's alleged indebtedness to the Robson firm attached to the proof of claim was an invoice from Robson & Miller dated February 1, 1981, showing the sum of $42,973.50 due for "Total Legal Fees" and the sum of $2,622.62 due for "Total Disbursements." (Robson Firm Proof of Claim, Deft. Ex. 38, p. 2; Miller, 4 Tr. 328)
1.3 Telecasting's Objection and Counterclaim. On September 18, 1984, Telecasting, in response to the proof of claim, filed an objection to claim and counterclaim alleging, inter alia, breach of fiduciary duty, legal malpractice, conflict of interest and fraud on the part of the Robson firm and Morton S. Robson, thereby converting the proof of claim into an adversary proceeding. (Robson Adversary Proceeding Docket, Entry 1) Bankruptcy Rule 3007. On April 18, 1986, Telecasting filed a second amended objection to claim and counterclaim seeking, inter alia, general damages in the amount of at least $3,500,000.00, and punitive damages in an unspecified amount. (Robson Adversary Proceeding Docket, Entry 102) This adversary proceeding went to trial on the Robson firm's proof of claim and Telecasting's second amended objection to claim and counterclaim.
1.4 The Robson Firm's Amended Proof of Claim. On October 25, 1984, at Mr. Overmyer's criminal trial in Louisville, Kentucky, Mr. Robson provided to the government a schedule of time charges, disbursements and payments received showing time charges of $43,570.50 and disbursements of $2,691.62, a total of $46,262.12, for Telecasting work. ) On the sixteenth day of trial, June 3, 1987, after resting its affirmative case, the Robson firm withdrew its amended proof of claim. (29 Tr. 3555, 3557-61) The Robson firm thereby conceded that it was not entitled to any compensation for any services performed, or claimed to have been performed, for Telecasting.
2.1 The Trial. The trial lasted 16 days, commencing on Monday, May 4, 1987, and concluding on Wednesday, June 3, 1987. During this period, 3,564 pages of proceedings were transcribed. The following witnesses were called by Telecasting:
Testimony of the following witnesses was presented by Telecasting through the reading of deposition transcripts.
Testimony of the following witnesses was presented by Telecasting through the reading of transcripts of prior trials:
The following witness was called by the Robson firm:
Kenneth N. Miller, Esquire (Miller, 27 Tr. 3284) Testimony of the following witnesses was presented by the Robson firm through the reading of deposition transcripts:
Testimony of the following witness was presented by the Robson firm through the reading of a transcript of a prior trial:
Edmund M. Connery, Esquire, former Overmyer house counsel (Connery Hadar Adversary Proceeding Testimony, 28 Tr. 3454)
2.2 The Parties.
a. The Plaintiffs. The plaintiffs in this adversary proceeding are Robson & Miller, formerly known as Robson Miller & Osserman, formerly known as Robson & Miller, formerly known as Robson & Toboroff (the "Robson Firm"), Morton S. Robson, Kenneth N. Miller and Richard A. Osserman.
b. The Defendant. The defendant in this adversary proceeding is D.H. Overmyer Telecasting Co., Inc.
3.1 Mr. Robson's Background. Mr. Robson graduated from St. John's University Law School in 1949 and thereafter engaged in the private practice of law. (Robson, 9 Tr. 811) From 1950 through 1953, Mr. Robson was a partner with his brother, Eugene, in the firm of Robson & Robson. (Robson, 9 Tr. 812) From 1953 through 1961, Mr. Robson was an attorney with the United States Attorney's office for the Southern District of New York, and served as interim United States Attorney for four months between S. Hazard Gillespie and Robert Morgenthau. (Robson, 9 Tr. 812-14) In 1961, Mr. Robson reentered the private practice of law as a partner with the law firm of Marshall, Bratter, Greene, Allison & Tucker in New York, New York. (Robson, 9 Tr. 814) In 1969, Mr. Robson left Marshall Bratter and practiced law with an associate for approximately a year. (Robson, 9 Tr. 815) Thereafter, Mr. Robson was a partner in the firm of Stanger & Robson for one and one-half years. (Robson, 9 Tr. 816) Upon the dissolution of Stanger & Robson, Mr. Robson became a partner in the firm of Zissu, Halper & Martin, which changed its name to Zissu, Lore, Halper & Robson. (Robson, 9 Tr. 817) Mr. Robson's association with Zissu Lore lasted approximately four years; he left that firm because he was "unable to deal with his co-managing partner whose personality he found very difficult." (Robson, 9 Tr. 817) In early 1976, Mr. Robson joined the law firm of Ballon, Stoll & Itzler. (Robson, 9 Tr. 818) By his own admission, Mr. Robson is not a bankruptcy expert. (Robson, 9 Tr. 841, 11 Tr. 1069, 1089, 14 Tr. 1454, Robson New York Dep., 17 Tr. 1823)
3.2 Mr. Robson's Association with Daniel Harrison Overmyer. Mr. Robson first became involved in representing Daniel H. Overmyer at the time that Mr. Robson was with Ballon, Stoll & Itzler. (Robson, 9 Tr. 900-01) Mr. Overmyer controlled a system of warehouses and a Toledo, Ohio television station, both of which were in Chapter XI. (Robson, 9 Tr. 823-24, 13 Tr. 1398-99, 14 Tr. 1507-08) See generally Hadar Leasing International Co. v. D.H. Overmyer Telecasting Co. (In re D.H. Overmyer Telecasting Co.), 23 B.R. 823 (Bankr. N.D.Ohio 1982) ("Hadar Decision"), aff'd, 53 B.R. 963 (N.D.Ohio 1984), aff'd mem., 787 F.2d 589, 590 (6th Cir.1986) . Mr. Robson has described Mr. Overmyer as "a very creative man who literally has...
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Matter of Robson
...Ohio held that respondent had filed false and deceptive affidavits and had lied under oath when he testified (In re D.H. Overmyer Telecasting Co., Inc., 77 BR 128, 160, 167 [1987] ["Mr. Robson's testimony was fraught with contradictions, inconsistencies, evasions, convenient memory lapses, ......