Matter of Gettys
| Decision Date | 21 February 1997 |
| Docket Number | Bankruptcy No. 95-11885. |
| Citation | 205 BR 515 |
| Parties | In the Matter of Robert P. GETTYS, Debtor. |
| Court | U.S. Bankruptcy Court — Southern District of Ohio |
COPYRIGHT MATERIAL OMITTED
John Woliver, Batavia, OH, for Claimant Lawrence R. Fisse.
Norman L. Slutsky, Cincinnati, OH, for Robert P. Gettys.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court upon motions for summary judgment filed by the Debtor and Lawrence R. Fisse. (Docs. 26 and 29.) This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1334 and the General Order of Reference entered in this District. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B).
On September 25, 1990, Sharon Heim (Heim) was injured in an automobile accident. (Heim Dep. at 9, 72.) A few days afterward Heim hired attorney Lawrence R. Fisse (Fisse) to represent her with a claim for personal injuries she sustained in the automobile accident. (Heim Dep. at 9-10, 72, attached Pl.'s Ex. 2, Contract for Contingent Fee Arrangements.) Fisse had represented Heim in a 1978 divorce action. After the automobile accident, Heim also hired Fisse to represent her in a second divorce action and in preparing a pre-nuptial agreement. Heim and Fisse agreed that Fisse's fee for work on the personal injury claim, the second divorce action and the pre-nuptial agreement would be paid out of the money recovered from the personal injury action. (Heim Dep. at 5-9, 90-91, 102-03.)
In April 1991, Heim underwent surgery on her back for injuries suffered in the automobile accident. (Heim Dep. at 21, 26.) Approximately, six months later Heim's surgeon, Dr. LeVan, evaluated her postoperative condition. In a letter to Fisse dated October 21, 1991, Dr. LeVan stated that "with the injury she sustained . . . it is not unreasonable to postulate she might require additional surgery . . . at some time in the future." (Fisse's Mot.Summ.J., Ex. 3 at ¶ 7.) Because he could not accurately predict Heim's future medical condition, treatment or expenses, Dr. LeVan further advised waiting until April 1992, "a year from the date of surgery" before making "any elemental decisions" concerning the settlement of insurance claims, characterizing any determination by Heim to "settle the situation now" as "a gamble." (Id. at ¶ 8.)
On November 4, 1991, Heim met with Fisse at his office to discuss her case relative to her medical condition as evaluated in the October 21, letter from Dr. LeVan. (Heim Dep. at 76-78, 99-100; Fisse's Mot.Summ.J., Ex. A, Affidavit of Fisse at ¶ 9). At this meeting Fisse cautioned that they should wait to file suit because of the likelihood of incurring additional medical expenses. (Heim Dep. at 76, 198-99.) Heim came away from this meeting feeling "relieved" because "we were going to sue my own insurance so there will be enough money to cover my medical bills and it was just a matter of how soon I could get them to give it to me." (Heim Dep. at 28-29.) After this meeting, in a letter to Heim's insurance company dated November 5, 1991, Fisse demanded full payment to the "policy limits." (Fisse's Reply in Opp., doc. 28, exhibit marked Attachment 1.)1
Meanwhile, at some undetermined time Heim's husband, Steve Heim, a part-time photographer, took some photographs for a friend of Susan Gettys. Susan Gettys, the Debtor's wife, desired similar photographs to use on Christmas cards for the approaching holiday so she obtained Steve Heim's telephone number from her friend. (Heim Dep. at 30, 125.) Susan Gettys telephoned the Heims and set up an appointment for Steve Heim to take the Christmas card photographs. (Heim Dep. at 30-31, 125, 133.) This appointment was later canceled. During a telephone conversation to reschedule the appointment Heim mentioned her automobile accident and personal injury claim to Susan Gettys, and that she hired an attorney but that she was dissatisfied with the progress of her case. (Heim Dep. at 32, 134.) Susan Gettys then told Heim that her husband, the Debtor herein, was an attorney who did personal injury work. (Heim Dep. at 32, 81, 136.)2
Subsequently, in November 1991, (Heim Dep. at 125), the Debtor telephoned the Heims to offer Steve Heim the job of photographing "Jan" a client the Debtor was representing in a personal injury action. (Heim Dep. at 137.) After taking the "Jan photographs," Steve Heim and Sharon Heim delivered the photos to the Debtor's law office. (Heim Dep. at 138.) While dropping off the "Jan photographs" Heim and the Debtor discussed her personal injury case. Heim related that she was discouraged at not yet receiving the insurance money and worried about "providing Christmas for the boys." (Heim Dep. at 138-39.) The Debtor paid for the "Jan photographs" and mentioned that he probably had another photography job for Steve Heim. (Heim Dep. at 138.)
Sometime later, still in November 1991, (Heim Dep. at 125), the Debtor telephoned Steve Heim to offer him the job of photographing another injured client named Creekmore. (Heim Dep. at 139-141.) The Heims' records indicate the "Creekmore photographs" were either taken, developed or delivered to the Debtor on November 27 or 29, 1991. (Heim Dep. at 142.) At the meeting to deliver the "Creekmore photographs" the Debtor brought up the topic of Heim's personal injury claim, asking Heim (Heim Dep. at 142-43.) Heim and the Debtor then "tried to figure up how long it had been since the accident," and Heim again told the Debtor she was upset because it had been a long time and she still did not have her money. At this meeting the Debtor told Heim that he could get her the insurance money, prompting Heim ask "are you sure?" The Debtor responded "yeah" to which Heim said "fine." (Heim Dep. at 142-43.)
Sometime after the delivery of the "Creekmore photographs" but before December 15, 1991, Sharon Heim and Steve Heim went to the Gettys' house to take the Christmas card photographs. (Heim Dep. at 143-44.) While positioning photography equipment at the Gettys' house Heim complained of pain in her back. (Heim Dep. at 80-82.) Heim and the Debtor again talked about her personal injury case and how the Debtor obtained a large sum of money for one of his clients in a similar case. According to Heim, during this conversation the Debtor told her "if that Heim's case would have been my case, I could have gotten it done sooner." (Heim Dep. at 34-38, 82.)
On or about December 15, 1991, the Gettys came to the Heims' house to review proofs of the Christmas card photographs. (Heim Dep. at 144, 145.) At this meeting the Debtor and Heim again discussed her case, with Heim informing the Debtor that it was still not settled. According to Heim, at this meeting the Debtor told her that "he could settle it" but that she would need to "fire Mr. Fisse before he the Debtor could really do anything with the case." (Heim Dep. at 39, 41-42, 87-88, 90.)
Between the delivery of the "Creekmore photographs" and December 15, 1991, Heim decided to hire the Debtor as her attorney. (Heim Dep. at 146, 150, 153-155.) At a meeting in the Debtor's law office the Debtor drafted a letter stating what Heim should say to Fisse in order to dismiss him as her attorney in the personal injury action. The Debtor told Heim to copy the letter in her own handwriting before sending it to Fisse. Finding the language of the Debtor's draft "too harsh," Heim changed some of the wording of the dismissal letter. (Heim Dep. at 44-45, 53-57, 97, 157-58.) The dismissal letter Heim mailed to Fisse is postmarked December 26, 1991. (Heim Dep. at 66, 97-98, 147.) The contract hiring the Debtor as Heim's new attorney in the personal injury action is dated December 28, 1991. (Debtor's Mot. in Limine, doc. 25, Ex. 1 and Heim Dep. attached Def.'s. Ex. C, Retainer Contract.) At the time of his dismissal Fisse had not filed a lawsuit regarding Heim's personal injury claim. (Heim Dep. at 69-71.)
On January 21, 1992, the Debtor filed a lawsuit on behalf of Heim. (Heim Dep. attached Pl.'s Ex. 8.) Sometime around the end of May 1992, the Debtor settled Heim's personal injury action for a total of $96,000. Of this amount the Debtor withheld $32,000 for his fee and $270.50 as reimbursement for expenses. Heim received the remaining $63,729.50 in full settlement of her claim. (Debtor's Mot. in Limine, doc. 25, Ex. 2.)
Subsequently, Fisse filed an action in the Clermont County Court of Common Pleas against the Debtor and Heim to recover attorney fees attributed to his representation of Heim. In the same action, Heim filed a cross-claim against the Debtor alleging that he fraudulently promised her that he would pay Fisse's attorney fees, thereby inducing her to fire Fisse and hire the Debtor. (Resp. to Debtor's Obj. to Claim, doc. 38, at 1-2, doc. 1.) The Debtor then filed the instant bankruptcy case, effectively postponing the trial in the Court of Common Pleas. Fisse and Heim settled their portion of the Common Pleas action, agreeing to entry of a judgment against Heim and for Fisse in the amount of $15,000, and that Heim assign her claim against the Debtor to Fisse. (Resp. to Debtor's Obj. to Claim, doc. 38 at 2-3; Proof of Claim, filed July 10, 1996, and attached exhibit.)
Fisse filed a claim against the Debtor's bankruptcy estate for $25,000 in attorney fees attributed to his representation of Heim and $25,000 in punitive damages and interest. (Fisse Proof of Claim #2 filed June 23, 1995.) Additionally, based upon the assignment received from Heim, Fisse filed a second claim for $15,000. (Fisse Proof of Claim, filed July 10, 1996.) These claims form the basis for the instant summary judgment motions.
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