Olick v. House (In re Olick)

• Decision Date: 20 March 2017
• Docket Number: Bky. No. 07–10880 ELF,Adv. No. 10–038
• Citation: 565 B.R. 767
• Parties: IN RE: Thomas W. OLICK, Debtor Thomas W. Olick, Plaintiff v. William C. House, Defendant
• Court: U.S. Bankruptcy Court — Eastern District of Pennsylvania

565 B.R. 767

IN RE: Thomas W. OLICK, DebtorThomas W. Olick, Plaintiff

v.William C. House, Defendant

Bky. No. 07–10880 ELF

Adv. No. 10–038

United States Bankruptcy Court, E.D. Pennsylvania.

Signed March 20, 2017

Thomas W. Olick, Easton, PA, pro se

MEMORANDUM

ERIC L. FRANK, CHIEF U.S. BANKRUPTCY JUDGE

I. INTRODUCTION

The events giving rise to this adversary proceeding occurred in the mid-to-late 1990's, almost twenty (20) years ago. Thomas W. Olick ("the Debtor" or "Olick"), acting pro se, asserts claims against his former attorney, William C. House ("House"). Olick's claims against House arise from House's representation of Olick in: (a) a chapter 13 bankruptcy case that Olick commenced in 1996 and (b) an affirmative claim Olick was pursuing in another forum during the pendency of that 1996 bankruptcy case.

The 1996 bankruptcy case has long been closed.

Olick filed a subsequent chapter 13 bankruptcy case in 2007. This adversary proceeding was filed in 2010 as part of the 2007 bankruptcy case. The administration of the 2007 bankruptcy case, too, has long been completed. Olick received his chapter 13 discharge on March 6, 2012. (Bky. No. 07–10880, Doc. # 225). The pendency of this adversary proceeding is the only reason that the 2007 bankruptcy case remains open.

As one might infer from this skeletal history, and as I will detail more fully below, the procedural history of this matter is long and tortuous, perhaps attributable to the fact that both parties (one an attorney and one not) have represented themselves throughout, but certainly due to their epic, mutual animosity.

Presently before the court is House's motion for summary judgment.

Based on the summary judgment evidentiary record, I conclude that:

(1) Olick has not met his burden of establishing that he has evidence to present at trial to prove every element of each of his claims; and

(2) Alternatively, Olick's claims are barred by the statute of limitations.

Therefore, I will grant House's motion and enter judgment in his favor and against Olick.¹

II. PROCEDURAL HISTORY

A. Olick's Pro Se Status

Since 1993, Olick has filed six (6) personal bankruptcy cases in this court² and, in connection with those cases, more than sixty (60) adversary proceedings.

Prior to 2006, the cases and adversary proceedings were assigned to the Reading division of the court. On February 21, 2006, the recusal of the newly appointed bankruptcy judge sitting in Reading caused all of Olick's matters to be transferred to the undersigned judge in the Philadelphia division. The cases and adversary proceedings that Olick has filed since February 21, 2006 also have all been heard in the Philadelphia division.

In most of the cases and proceedings in the Reading division between 1993 and 2006³ and in every one of the cases and proceedings in the Philadelphia division since 2006, Olick has represented himself.

B. Olick's "Main" Bankruptcy Cases

All of Olick's bankruptcy cases, except for the last one filed in 2013, were filed under chapter 13.

His first bankruptcy case was filed, jointly with his spouse on June 3, 1993, but was dismissed shortly thereafter on July 19, 1993. (Bky. No. 93–21726). The second chapter 13 case, also a joint case, was filed on October 26, 1993 and was dismissed on September 22, 1997. (Bky. No. 93–23114).

While the second case was still pending, Olick filed his third bankruptcy case, again jointly with his wife, on July 11, 1996 ("the 1996 Bankruptcy Case"). (See Bky. No. 96–22123).⁴

Olick's chapter 13 plan was confirmed on January 25, 1999 and he completed his payment obligations under the plan by July 2000. (Bky. No. 96–22123, Doc. # 's 718, 720).⁵ The case nevertheless remained open due to the pendency of numerous adversary proceedings and various appeals.⁶ Olick and his spouse finally received their chapter 13 discharge on September 26, 2006. (Bky. No. 96–22123, Doc. # 's 298, 737). The case remained open until February 2010 while various adversary proceedings and appeals ran their course.

On November 26, 2001, while the 1996 Bankruptcy Case remained open (for administrative purposes), Olick filed his fourth bankruptcy case, this time individually without his spouse. (Bky. No. 01–25353). The chapter 13 trustee promptly moved to dismiss the case. (Bky. No. 01–25353, Doc. # 7). After a hearing, and the submission of briefs by both sides, the case was dismissed by order entered April 3, 2002. (Bky. No. 01–25353, Doc. # 20).

Almost five (5) years later, on February 9, 2007, again while the 1996 Bankruptcy Case remained open, Olick filed his fifth bankruptcy case ("the 2007 Bankruptcy Case"). (See Bky. No. 07–10880). This was another individual filing by Olick. His chapter 13 plan was confirmed on January 22, 2008 and Olick received a discharge on March 6, 2012. During the 2007 Bankruptcy Case, Olick filed numerous adversary proceedings, including the present one.

Olick's last bankruptcy case was an individual chapter 7 filing on January 10, 2013 ("the 2013 Bankruptcy Case"). (See Bky. No. 13–10249). He received a discharge and the case was closed on June 7, 2013.

C. The Origins of the Olick–House Dispute

Olick's dispute with House is rooted in the 1996 Bankruptcy Case. During that case, House represented Olick in two (2) capacities.

First, on Olick's motion, House was appointed in April 1997 to represent Olick in a proceeding in another forum—in effect, as special counsel to Olick in his capacity as chapter 13 debtor.⁷ That other forum was a panel of the National Association of Securities Dealers, Inc., which was conducting an arbitration proceeding ("the NASD Arbitration") that Olick had commenced prepetition. (See Bky. No. 96–22123, Doc. # 125).⁸

Second, in August 1997, the scope of House's representation expanded when House entered his appearance, pro hac vice, as Olick's general bankruptcy counsel in the chapter 13 case. (Bky. No. 96–22123, Doc. # 214, August 28, 1997 Hearing Tr. at 6–9; see also Doc. # 293, House's Motion to Withdraw as Debtor's Counsel ¶ 4).⁹

The House–Olick attorney client relationship was short-lived. As will be detailed below in the recitation of the undisputed facts, House's role as general bankruptcy counsel terminated on March 11, 1999 and his role as special counsel in connection with the NASD Arbitration terminated on February 3, 1999. All of Olick's claims in this adversary proceeding are rooted in the April 1997–March 1999 time frame.

D. Olick's Three (3) Prior Adversary Proceedings Against House

Olick has filed four (4) adversary complaints against House, three (3) in the 1996 Bankruptcy Case. The current adversary proceeding was filed in 2010 and is related to Olick's 2007 Bankruptcy Case. The claims asserted in the three (3) prior adversary proceedings and their disposition are relevant and are summarized below.

1. House I—Adv. No. 99–2058

On March 22, 1999, a few weeks after the bankruptcy court terminated House's representation (both as bankruptcy counsel and NASD Arbitration counsel), Olick filed his first adversary complaint against House ("House I"). In the House I complaint, Olick alleged malpractice, breach of contract based on House's representation of Olick in the bankruptcy case and the NASD Arbitration. The initial complaint was dismissed, but Olick filed an amended complaint on August 16, 1999. The amended complaint was dismissed with prejudice on March 30, 2000. Olick did not appeal.

2. House II—Adv. No. 02–2091

After the dismissal of House I, no adversary litigation between the parties occurred for two (2) years. The NASD Arbitration remained pending and House did not participate in that proceeding. However, in the main bankruptcy case, Olick and House battled intensely (via motion practice) over House's right to compensation from the bankruptcy estate. On January 20, 2000, over Olick's objection, the bankruptcy court granted in part House's application for compensation. (Bky. No. 96–22123, Doc. # 333). The entry of this order triggered an avalanche of court filings by both Olick and House, including appeals to the district court. (See, e.g., Bky. No. 96–22123, Doc. # 's 334, 341, 351, 361, 365, 411, 415, 420, 447).¹⁰ This litigation was ongoing when Olick commenced another adversary proceeding against House on March 28, 2002 ("House II").

The House II complaint was comparatively narrow in nature. Olick alleged that House breached their agreement by failing to produce documents related to House's fee application in the 1996 Bankruptcy Case. On October 3, 2002, the bankruptcy court stayed House II pending the outcome of the appeals over House's compensation. The stay lasted nearly seven (7) years. House II was dismissed on January 12, 2009. (Adv. No. 02–2091, Doc. # 10). No appeal followed.

3. House III—Adv. No. 03–2054

On March 3, 2003, Olick filed his third adversary complaint against House alleging, inter alia, malpractice, breach of contract and breach of fiduciary duty based on House's representation of Olick in the bankruptcy case and the NASD Arbitration ("House III"). On April 8, 2003, House moved to dismiss House III, but the bankruptcy court did not rule on it until January 28, 2010. House III was dismissed for lack of jurisdiction.¹¹

E. The Present Adversary Proceeding–House IV, Adv. No. 10–038

1. the bankruptcy court dismissal of the Complaint

On February 4, 2010, eight (8) days after the dismissal of House III, Olick filed another complaint against House, initiating the present adversary proceeding ("House IV").

The adversary complaint in House IV is nearly identical to the one filed in House III. In the 38–page complaint, Olick asserted four (4) claims based on House's representation of Olick during the bankruptcy case and the NASD Arbitration: (I) breach of contract; (II) fraud; (III) negligence and malpractice; and (IV) breach of fiduciary duty.

House moved to dismiss House IV on April 1, 2010. This court granted the motion on June 28, 2011, reasoning that all of Olick's claims were precluded based on res judicata because:

(1) the

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