Provanzano v. National Auto Credit, Inc., CIV.A. 95-CV-12370-RGS.
| Decision Date | 04 June 1998 |
| Docket Number | No. CIV.A. 95-CV-12370-RGS.,CIV.A. 95-CV-12370-RGS. |
| Citation | 10 F.Supp.2d 44 |
| Parties | Joseph PROVANZANO v. NATIONAL AUTO CREDIT, INC. f/k/a Agency Rent-A-Car, Inc. |
| Court | U.S. District Court — District of Massachusetts |
Litigant's Attorney, Alan E. Lipkind, Lane & Altman, Henry F. Owens, III, Lane, Altman & Owens, Boston, MA, for Plaintiff.
Joseph S. Provanzano, Peabodyh, MA, pro se.
Marilyn D. Stempler, Wayne F. Dennison, Brown, Rudnick, Freed & Gesmer, Boston, MA, Thomas E. Peisch, Thomas J. Gallitano, Conn, Kavanaugh, Rosenthal, Peisch & Ford, Boston, MA, for Defendants.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Joseph Provanzano, an attorney, brought this lawsuit against a former client, Agency Rent-A-Car Inc. (Agency), now known as National Auto Credit, Inc., for breach of contract and violation of Chapter 93A.1 In 1993, Agency, an Ohio-based corporation, operated a rental car business in Massachusetts. In September of 1993, Provanzano and Agency entered into a contract (the Agreement) whereby Provanzano was to represent Agency for five years on all claims arising out of its Massachusetts rental operations. Agency was to pay Provanzano a monthly fee of $12,500 for his services, plus certain agreed costs. On September 30, 1995, Agency sold its rental car business to Avis and ceased doing business in Massachusetts. On October 31, 1995, Agency terminated Provanzano. Provanzano argues that because the Agreement was a "hell or high water" contract, he is entitled to the balance of his five year retainer ($437,500, more or less).
On April 30, 1997, Agency filed this motion for summary judgment, contending that, because under Massachusetts law, a client may terminate a lawyer at any time (with rare exception), for any reason, or for no reason at all, it is liable at most in quantum meruit for any unpaid work that Provanzano actually performed. Agency maintains that any dispute of fact as to whether it terminated Provanzano for cause is irrelevant. Finally, Agency argues that Provanzano's Chapter 93A claim is barred because an attorney-client relationship does not involve "trade or commerce."
Provanzano contends that the Agreement is a "general retainer," and that he is thus entitled to the full value of the contract. Provanzano portrays himself as the innocent victim of a "witch hunt" fomented by a power struggle between Agency's former general counsel and the company's majority owner. Provanzano also complains that Agency paid him erratically, failed to cooperate in the defense of some lawsuits, and lied about the amount of litigation directed against it in violation of Securities and Exchange Commission rules.2
Agency has also moved to strike those portions of Provanzano's statement of disputed facts that involve pre-contract negotiations and the events leading to his termination, contending that they are irrelevant to the issue of law before the court.3 On a more fundamental level, Agency maintains that some of the material Provanzano includes in his pleadings breaches the attorney-client privilege. A hearing was held on the motions on October 8, 1997.4
The material facts are these. The Agreement was entered in September of 1993. Provanzano had represented Agency on a case by case basis. The material terms of the Agreement were as follows.
Article Eight provided that Agency would pay Provanzano's costs. The Agreement then stated that:
NINTH: THAT, during the Term of
this AGREEMENT, ATTORNEY
and AGENCY agree that
there may exist such matters
and/or cases. commonly known
as "Conflict Cases", which will
require that AGENCY employ
additional legal counsel, in addition
to the ATTORNEY....
If AGENCY advises that additional
legal counsel shall be
engaged, AGENCY and ATTORNEY
agree that the ATTORNEY
shall engage said
additional counsel or counsels
with the compensation therefor
to be billed on an hourly basis
not to exceed SEVENTY
FIVE ($ 75.00) DOLLARS per
hour, plus costs and expenses,
as stated hereinabove.
FIFTEENTH: THAT this AGREEMENT may
be amended and/or modified by
negotiations to be held by the
parties in good faith should
AGENCY announce, and in fact
then, withdraw from renting automobiles
within the Commonwealth
of Massachusetts.
SEVENTEENTH: Nothing contained in this
Agreement shall be deemed to
limit Agency's choice of counsel
for matters not involving claims
for bodily injury arising out of
motor vehicle accidents involving
an automobile(s) owned or
leased by Agency.
A five year contract and a $150,000 yearly retainer were not the only alternatives discussed. Agency and Provanzano also considered a three year contract and a yearly retainer of $165,000. Agency chose the discounted retainer in exchange for agreeing to the longer contract term.5
In February or March of 1995, the parties amended the Agreement to shorten its term from five to four years contingent upon Agency tendering Provanzano's monthly payments in a timely fashion. The pertinent sections of the Amended Agreement are as follows.6
WHEREAS, AGENCY has notified the "ATTORNEY" that AGENCY desires to obtain/possess an Option to Amend/Alter the Original AGREEMENT between the parties so that AGENCY may alter the Original AGREEMENT's term, presently to expire as of September 1, 1998, to an AGREEMENT that expires as of September 1, 1997 as concerns the "Retainer Fee Payments" as stated hereinafter, and which thereafter may be further negotiated to extend or be continued, all as stated within the Original AGREEMENT; AND
WHEREAS, The "ATTORNEY" desires to receive payment from AGENCY exactly as called for within the AGREEMENT;
THAT however, as concerns the Retainer Fee Payments to be paid pursuant to this AGREEMENT and as further stated hereinafter, if and only if AGENCY makes timely payment of each, every and all Retainer Fee Payments and all other Invoices invoiced pursuant to this AGREEMENT, all as stated hereinafter, (both as due from March 1, 1995 through August 30, 1997) then and only then, and conditioned expressly thereupon, the Term of this AGREEMENT as concerns Retainer Fee Payments shall end as of September 1, 1997, instead of September 1, 1998. Notice of untimely payments is not called for or required and the acceptance of untimely payments shall not waive any rights of the ATTORNEY. The AGREEMENT thereafter may be further negotiated to extend or be continued, all as stated within Paragraph FIFTEENTH of the Original...
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