LeBoeuf, Lamb, Greene & MacRae v. Worsham

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-7941
• Parties: (2nd Cir. 1999) LeBOEUF, LAMB, GREENE & MacRAE, L.L.P., Plaintiff-Counter-Defendant-Appellee, v. EARL WORSHAM, Defendant-Counter-Claimant-Appellant, THE WORSHAM GROUP, INC., Defendant-Counter-Claimant
• Court: U.S. Court of Appeals — Second Circuit

Page 61

185 F.3d 61 (2nd Cir. 1999)

LeBOEUF, LAMB, GREENE & MacRAE, L.L.P., Plaintiff-Counter-Defendant-Appellee, v. EARL WORSHAM, Defendant-Counter-Claimant-Appellant, THE WORSHAM GROUP, INC., Defendant-Counter-Claimant.

Docket No. 98-7941

August Term, 1998

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Argued April 9, 1999

Decided July 22, 1999

Appeal from a grant of summary judgment in the United States District Court for the Southern District of New York (John F. Keenan, Judge), holding an individual liable for unpaid legal bills. We reverse on the ground that there is a dispute of material fact over whether the services were provided to a corporation.

VINCENT P. ESPOSITO, JR., LeBoeuf, Lamb, Greene & MacRae, L.L.P. (Robert J. Alessi, of counsel), Albany, New York, for Plaintiff-Counter-Defendant-Appellee.

EARL S. WORSHAM, pro se, Gatlinburg, Tennessee, for Defendant-Counter-Claimant-Appellant.

Before: WINTER, Chief Judge, NEWMAN, and SOTOMAYOR, Circuit Judges.

WINTER, Chief Judge:

Earl Worsham, pro se, appeals from Judge Keenan's grant of summary judgment holding Worsham liable for all unpaid bills submitted by the law firm LeBoeuf, Lamb, Greene & MacRae, L.L.P. ("LeBoeuf"). We reverse because there is a genuine dispute over the material fact of whether the legal services were provided to a corporation rather than to Worsham personally.

BACKGROUND

Beginning in October 1992 and for two years thereafter, The Worsham Group, Inc. (TWGI), a group of corporations in which Worsham was one of the principal shareholders, and, allegedly, Worsham personally, received legal services from LeBoeuf. These services dealt primarily with TWGI's ventures in Russia. After various invoices for these legal services went unpaid, LeBoeuf filed the present diversity action against Worsham and TWGI.

In its complaint, LeBoeuf sought relief on three overlapping claims: (i) a collection claim on the invoices, (ii) an accounts-stated claim also based on the invoices, and (iii) a quantum meruit claim for the value of LeBoeuf's services. LeBoeuf alleged that Worsham and TWGI were jointly and severally liable on each claim. Following various delays and the withdrawal of Worsham's counsel, see LeBoeuf, Lamb, Greene, & MacRae, L.L.P. v. Worsham, No. 96 Civ. 2942 (JFK), 1998 WL 55370, at *3-*4 (S.D.N.Y. Feb. 11, 1998) (describing litigation history), LeBoeuf moved, inter alia, for summary judgment against Worsham and TWGI on the accounts-stated and quantum meruit claims. Because TWGI failed to oppose the motion, the district court entered a default judgment against it. No appeal has been taken from this ruling.

In response to the summary judgment motion, Worsham, representing himself, sent a letter to the district court. The letter made the straightforward argument that LeBoeuf had been hired only by TWGI and not by Worsham in his personal capacity. The letter was signed but unsworn. Nevertheless Worsham stated: "Under penalty of perjury, I make the statements contained herein." The district court granted summary judgment for LeBoeuf and against Warsham on the accounts-stated and quantum meruit claims. See id. at *5.

A judgment was entered on February 20, 1998, but it did not specify the dollar amount owed by Worsham. On March 18, 1998, Worsham filed a notice of appeal. On April 13, 1998, this appeal was dismissed for failure to file a pre-argument statement (Form C) and a transcript request (Form D). Meanwhile, LeBoeuf moved in the district court to amend the judgment to reflect a sum certain. The district court amended the judgment on April 16, 1998, stating that Worsham was liable for $197,224.55 plus interest. Worsham then filed a timely notice of appeal from the amended judgment on May 14, 1998.

On appeal, Worsham again argues that LeBoeuf provided legal services solely to TWGI. LeBoeuf contends that we lack appellate jurisdiction to entertain this issue because it was waived when the original appeal was dismissed. Moreover, LeBoeuf contends that, even if we do have jurisdiction, there is no genuine issue of material fact in dispute.

DISCUSSION

a) Appellate Jurisdiction

According to LeBoeuf, the judgment entered on February 20, 1998, was final. Because Worsham's appeal from it was dismissed on April 13, any appeal from the amended judgment of April 16, which added a sum certain for damages, can relate only to the amount of damages and not liability. We disagree.

The February 20, 1998 judgment was not a final judgment. Language in the district court's February 11 opinion states to the contrary, see LeBoeuf, 1998 WL 55370, at *5 ("This case is closed, and the Court directs the Clerk of the Court to remove it from the active docket."), but a district court cannot render a non-final judgment final simply by so stating. The February 20 judgment was non-final because the district court had yet to award damages. "[W]here liability has been decided but the extent of damages remains undetermined, there is no final order." Forschner Group, Inc. v. Arrow Trading Co., 124 F.3d 402, 410 (2d Cir. 1997); see also Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 (1948); Shimer v. Fugazy (In re Fugazy Express, Inc.), 982 F.2d 769, 775 (2d Cir. 1992) (stating that "a final order is one that conclusively determines the rights of the parties to the litigation, leaving nothing for the district court to do but execute the order"). Worsham's first appeal was premature because a final order was not entered until April 16, 1998. Worsham's second appeal was therefore timely as to both liability and damages, and we have jurisdiction to review both issues.

b) The Merits

We review the grant of summary judgment de novo. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Summary judgment should be granted only when, after reviewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 95 (2d Cir. 1998). The initial burden of demonstrating the absence of a disputed issue of material fact lies with the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994). If the moving party satisfies this burden, the non-movant "'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)).

Turning to the merits of the accounts-stated claim, we note that, under New York law,¹ such a claim requires "an agreement between the parties to an account based upon prior transactions between them . . . ." Chisholm-Ryder Co. v. Sommer & Sommer, 421 N.Y.S.2d 455, 457 (N.Y. App. Div. 1979). Such an agreement may be implied if "a party receiving a statement of account keeps it without objecting to it within a reasonable time" or "if the debtor makes partial payment." Id.; see also Rosenman Colin Freund Lewis & Cohen v. Neuman, 461 N.Y.S.2d 297, 298-99 (N.Y. App. Div. 1983). Moreover, "an account stated may be established between an attorney and his client." Kramer, Levin, Nessen, Kamin & Frankel v. Aronoff, 638 F. Supp. 714, 719 (S.D.N.Y. 1986) (citing Rodkinson v. Haecker, 162 N.E. 493 (N.Y. 1928)).

To prevail on its motion for summary judgment on the accounts-stated claim, LeBoeuf had to show that, as a matter of law, Worsham personally was the client for whom all the legal services were performed or that he had agreed to pay for all such services rendered to TWGI. LeBoeuf's submissions in support of its motion for summary judgment themselves fail to show that material facts are not in dispute. According to LeBoeuf's statement of undisputed facts, Worsham and TWGI had "engaged LeBoeuf to provide legal services to them," these services were rendered, invoices were sent and received, some invoices had been paid, but a deficiency of $146,042.79 existed. LeBoeuf also submitted the invoices, a number of letters requesting payment, and the checks used to pay certain of the invoices. LeBoeuf's invoices and letters accompanying those invoices were addressed to either:

                Earl Worsham 
                c/o Worsham Group, Inc. 
                

or:

                Earl S. Worsham 
                Chairman 
                The Worsham Group, Inc
                

or:

                Earl S. Worsham 
                The Worsham Group, Inc
                

Moreover, the checks used to pay these bills were drawn on TWGI accounts and not Worsham's personal account.

Conspicuously absent from LeBoeuf's submissions is any retainer or fee agreement regarding the legal services it was to perform or for whom they were to be performed. Also absent is any submission indicating that the services were performed for Worsham personally rather than for corporations in which he was a shareholder. To be sure, Worsham was the addressee of the invoices and letters, but that fact hardly resolves the issue of whether he was receiving such correspondence as an individual or as a corporate officer. Indeed, one address used includes Worsham's title as "Chairman of TWGI," a description that weakens rather than supports LeBoeuf's claim. Finally, when LeBoeuf's bills were paid, they were paid by TWGI checks. On this record, there is no basis to conclude as a matter of law that Worsham personally was the client for whom all the legal services in question were performed. Finally, there is no circumstantial evidence or evidence of practice from which a conclusive inference of an agreement by Worsham to pay TWGI's bills might be drawn. Indeed, a trier might well find it easier to absolve Worsham of any liability than to impose it because on this record it appears undeniable that many of the legal services were provided to TWGI.

Moreover, Worsham's letter in response to LeBoeuf's motion states that the legal services in question were performed solely for TWGI. LeBoeuf first urges us to disregard the letter because it is conclusory. However,...