Vazeen v. Sir

• Court: Tennessee Court of Appeals
• Writing for the Court: CARMA DENNIS MCGEE, JUDGE
• Decision Date: 04 March 2021
• Docket Number: No. M2019-01395-COA-R3-CV,M2019-01395-COA-R3-CV
• Citation: Vazeen v. Sir, No. M2019-01395-COA-R3-CV (Tenn. App. Mar 04, 2021)
• Parties: JON VAZEEN v. MARTIN SIR

JON VAZEEN
v.
MARTIN SIR

No. M2019-01395-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs December 9, 2020
March 4, 2021

Appeal from the Circuit Court for Davidson County
No. 16C2388
Don R. Ash, Senior Judge

This appeal involves a fraud claim filed against an attorney by his former client. The attorney conceded that the client had been double-billed for some charges and repaid the client for those matters prior to trial. However, the client, now pro se, continued to pursue his claim for fraudulent billing, insisting that fraud extended to the entire invoice. He also claimed that the attorney had charged a higher hourly rate than agreed. After a bench trial, the trial court found that the client failed to demonstrate that the attorney intentionally misrepresented the amounts owed by the client and failed to present sufficient evidence of fraud. As such, the trial court dismissed the claim and granted the attorney's request for discretionary costs. The client appeals. We affirm in part, reverse in part, and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part, and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN and KENNY W. ARMSTRONG, JJ., joined.

Jon Roozbeh Vazeen, Knoxville, Tennessee, Pro Se.

Tom Corts, Hayley Vos, and Dayne Geyer, Nashville, Tennessee, for the appellee, Martin Stephen Sir.

OPINION

I. FACTS & PROCEDURAL HISTORY

Martin Sir is an attorney in Nashville. His law firm is called Martin Sir &

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Associates. In February 2015, the firm began representing Jon Vazeen in his divorce case. After Vazeen complained about the associate attorney who was representing him, Sir took over the case in May 2015. On July 24, 2015, the firm sent an invoice to Vazeen with the charges for his representation thus far. Vazeen paid the full amount of the bill. However, Vazeen terminated Sir in September 2015 and accused Sir of overcharging him in the July 24 invoice.

On October 7, 2015, Sir prepared a corrected bill that removed some billing entries that admittedly had been duplicated. Unsatisfied, Vazeen wrote a letter to Sir stating that a court would decide whether Vazeen had any obligation to pay any of the remaining invoice items. Vazeen demanded "a legally binding explanation of legitimacy (i.e. supported by verifiable evidences) of each and every [one] of your invoice items." In light of the ongoing dispute, Sir did not immediately repay Vazeen for the duplicated amounts that Vazeen had already paid pursuant to the original invoice.

In January 2016, Vazeen filed a formal complaint against Sir with the Tennessee Board of Professional Responsibility. In September 2016, he filed this lawsuit against Sir. The complaint alleged that Vazeen had been damaged by Sir's "repeated unprofessional behavior and his fraud." Vazeen alleged that Sir had engaged in "unprofessional and damaging behavior" during his representation in the divorce case, which was "compounded" by Vazeen's discovery that Sir had "infus[ed] several thousand dollars of fake items in his invoice." As damages, Vazeen sought the return of approximately $20,000 in "direct monetary payments" made to Sir during the divorce case in addition to $10 million in punitive damages.

Senior Judge Don Ash was assigned to hear the case. Sir filed an answer, and discovery ensued. While the lawsuit was pending, the Board of Professional Responsibility dismissed the ethics complaint filed by Vazeen. Sir filed a motion for summary judgment, arguing that the legal malpractice claims asserted by Vazeen were barred by the statute of limitations and the fraudulent billing claim was barred by res judicata in light of the Board's dismissal of the ethics complaint.

Before the summary judgment motion was resolved, Vazeen filed a "Motion to Force [Sir to] Pay the Undisputed Overcharged Amounts." Based on the corrected invoice, Vazeen claimed it was undisputed that he had been overcharged $3,159. He requested a return of that amount plus 18 percent interest for a period of two and a half years, for a total of $4,937.77. In response to the motion, Sir paid Vazeen $3,948.75, which represented the admittedly duplicated charges of $3,159 plus interest at the rate of 10 percent for a period of two and a half years.

After a hearing, the trial court entered an order granting summary judgment to Sir on all claims. The trial court found that the complaint was untimely as to the theories of legal malpractice. As for the claim of fraudulent billing, the trial court noted that it was

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unclear whether Vazeen was attempting to allege common law fraud or another theory of legal malpractice. But, in any event, the trial court found that the fraudulent billing claim was barred by res judicata due to the dismissal of the ethics complaint by the Board of Professional Responsibility. Vazeen filed a notice of appeal to this Court.

On appeal, this Court affirmed in part and vacated in part. Vazeen v. Sir, No. M2018-00333-COA-R3-CV, 2018 WL 6419134 (Tenn. Ct. App. Dec. 5, 2018). First, we determined that Vazeen had waived any issue regarding the legal malpractice claims for failure to reference them in his statement of the issues presented on appeal. Id. at *3. We also noted that even if the issue had not been waived, his argument would not have been successful because the undisputed facts established that his legal malpractice action was not timely brought. Id. Next, we considered the fraud claim. At the outset, we rejected the notion that the fraudulent billing claim sounded in legal malpractice. Id. at *4. We explained that not every claim challenging the conduct of a lawyer is a professional malpractice claim. Id. We concluded that Vazeen sufficiently alleged intentional misconduct in the form of a fraud claim.¹ Id. Finally, we considered whether the Board's dismissal of the ethics complaint required dismissal of Vazeen's fraud claim on the basis of res judicata. Id. at *5. We held that it did not, for two reasons. First, the Board was not a court of competent jurisdiction within the meaning of the res judicata analysis. Id. Secondly, the same claim was not asserted in both suits because the Board proceeding did not consider whether Vazeen should be awarded damages on his fraudulent billing claim. Id. at *6. As such, this Court vacated the entry of summary judgment on the fraudulent billing claim and remanded for further proceedings. Id.

After remand, the trial court held a bench trial on the fraud claim. The only witnesses were Vazeen and Sir. Fifty-three exhibits were introduced. Vazeen testified that Sir had defrauded him in several ways, which he separated into different categories. For one, he described the "fake" charges that he discovered on the original July 24, 2015 invoice. That invoice included the following itemized billing entries for work done by Sir:

6/22/2015	Review of file in prep for Wife's Deposition. . .	2:30	350.00	875.00
6/23/2015	Deposition of Wife; Prep of Motion to Amend; and Motion for Support and Attorneys Fees . . .	5:00	350.00	1,750.00
6/24/2015	Review of file in prep for Scheduling Order; Phone conference with Client and Opp. Atty.; re: re-scheduling depo.; Email to Opp. Att. re: re-scheduling depo. . . .	0:18	350.00	105.00

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. . . .

7/22/2015	Review of file in prep for Wife's Deposition . . .	2:30	350.00	875.00
7/23/2015	Deposition of Wife; Prep of Motion to Amend; and Amended Complaint For Support . . . .	5:12	350.00	1,820.00

Vazeen testified that the problem with this invoice was that the deposition on June 23 "never happened." Vazeen said as soon as he figured out that these "fake items" were included in the invoice, he fired Sir "right away." Vazeen acknowledged that Sir took these particular charges off of his bill when Sir issued the corrected invoice on October 7. The revised bill removed the aforementioned charges from June 22 and June 23. Still, Vazeen emphasized that Sir did not reimburse him for his payment of the removed charges until he filed this lawsuit. Vazeen noted that Sir had also included $368.57 on the invoice for the court reporter fee for the deposition, when Vazeen had already paid that expense directly, at Sir's request. However, Sir had included that sum in the amount he refunded Vazeen during this litigation. Thus, by the time of trial, Vazeen had been reimbursed for all of these duplicate charges, with interest. Still, Vazeen insisted that "the integrity of the entire invoice of Mr. Sir comes under question."

Another category of fraud that Vazeen alleged related to the hourly rates he was charged. Vazeen testified that he did not discover this issue until he was preparing for Sir's deposition and reviewing more detailed billing records. These records showed that Vazeen was charged $250 per hour for the associate attorney's work from the first billing entry on February 15, 2015, until April 14, 2015. Beginning with the next entry, on April 23, 2015, the associate attorney's work was inexplicably billed at the rate of $350 per hour. When Sir began working on the case on May 21, 2015, his work was also billed at the rate of $350 per hour. Vazeen insisted that he never agreed to pay $350 per hour and that he recalled agreeing to $250 per hour. Vazeen testified that he had called several different firms when initially searching for an attorney in 2014, and all of the attorneys he contacted charged $250 per hour. He introduced his handwritten notes reflecting names of attorneys and their prices, which included a notation for Sir & Associates at $250 per hour. He said it was his understanding that everyone was charging $250 per hour, and there is no way he would have agreed to pay more. Vazeen acknowledged that he had a contract with Sir but said that he could not locate the copy he signed.

During cross-examination, Vazeen acknowledged...