United States District Court, W.D. Kentucky, Louisville
KURT K. MOHNSAM PLAINTIFF
JASON M. NEMES, ET AL. DEFENDANT
CHARLES R. SIMPSON III, SENIOR JUDGE
matter is before the Court on Defendants Fultz Maddox Dickens
PLC (“Fultz Maddox Dickens”) and Jason Nemes
(“Nemes”), Acuity, A Mutual Insurance Company
(“Acuity”), and Martin & Bailey, Inc.'s
(“Martin & Bayley”) motions for summary
judgment. DN 90; DN 96-1; DN 101. Plaintiff Kurt K. Mohnsam
(“Mohnsam”) responded to each motion and
requested oral arguments on all issues surrounding the
motions. DN 116; DN 117; DN 118. All defendants subsequently
replied. DN 119; DN 120; DN 125. For the reasons set forth
below, the Court finds that oral argument is unnecessary and
the motions for summary judgment will be granted for each
judgment is appropriate when the moving party can show that
“there is no genuine dispute as to any material fact
and the movant is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “[T]he mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). A genuine issue for
trial exists when “there is sufficient evidence
favoring the non- moving party for a jury to return a verdict
for that party.” Id. In undertaking this
analysis, the Court must view the evidence in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007).
party moving for summary judgment bears the burden of proof
for establishing the nonexistence of any issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). They can meet this burden by “citing to
particular parts of materials in the record” or
“showing that the materials cited do not establish
the…presence of a genuine dispute.” Fed.R.Civ.P.
56(c)(1). This burden can also be met by demonstrating that
the nonmoving party “fail[ed] to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex, 477
U.S. at 322. The nonmoving party also “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
retained Mohnsam, an attorney admitted to practice in
Kentucky, to represent him in a slip-and-fall case against
Martin & Bayley's automobile service station in
September of 2012. DN 1 at ¶ 19-20. Mohnsam alleges he
and Perry entered into a contingency fee agreement.
Id. According to Mohnsam, Perry agreed to pay
Mohnsam ten percent of the principal amount recovered from
Martin & Bayley or, alternatively, a reasonable fee for
Mohnsam's services. Id. The parties dispute
whether this contingency fee agreement exists. DN 1 at ¶
19-20; DN 96-1 at 33. On September 4, 2013, Mohnsam commenced
a personal injury lawsuit on Perry's behalf against
Martin & Bayley in the United States District Court for
the Eastern District of Kentucky. DN 1 at ¶ 28. Two days
later, on September 6, 2013, Mohnsam commenced a parallel
state action in the Circuit Court of Shelby County.
Id. at ¶ 29.
& Bayley did not file an answer in the Shelby County
action. Id. at ¶ 32. On November 13, 2013,
Perry engaged Fultz Maddox Dickens and Nemes, an attorney at
Fultz Maddox Dickens, to pursue a default judgment in the
Shelby County action. Id. at ¶ 35. Mohnsam
continued as co-counsel in the case. Id. at ¶
31. On November 22, 2013, Fultz Maddox Dickens filed a motion
for default judgment against Martin & Bayley.
Id. at ¶ 37. On March 7, 2014, the court
entered a default judgment award of $2, 654, 241.95 against
Martin & Bayley DN 1-6.
& Bayley subsequently sought to set aside the default
judgment; the parties then engaged in extensive settlement
negotiations. DN 90 at 3; DN 96-1 at 7. Fultz Maddox Dickens
and Nemes represented Perry throughout the negotiations with
Martin & Bayley. DN 96-1 at 8. Perry also separately
engaged former Kentucky Chief Justice Joseph E. Lambert
(“Lambert”) to help with the settlement
negotiations. DN 96-1 at 7-8. Perry and Martin & Bayley
reached a Settlement and Mutual Release agreement on
September 19, 2014 for $1, 811, 000.00 (“Settlement
Amount”). Mohnsam, while still co-counsel in the case,
did not participate in any negotiation, execution, or
delivery of the Settlement and Mutual Release agreement. DN 1
at ¶ 41. Mohnsam agreed that Nemes and Lambert had
“full authority to enter into a settlement agreement
without [Mohnsam's] personal involvement.” DN 116
accordance with the Settlement and Mutual Release agreement,
Martin & Bayley's insurer, Acuity, issued two checks
to Fultz Maddox Dickens for the full Settlement Amount. DN
101 at 7. Nemes deposited each check into Fultz Maddox
Dickens' IOLTA account. DN 96-1 at 8; DN 101 at 7. Perry
then instructed Nemes to send the Settlement Amount, minus
Fultz Maddox Dickens' fee and other remaining expenses,
directly to him. DN 96-1 at 8. Nemes claims that Perry said
he would pay Mohnsam from the remaining Settlement Amount.
Id. Nemes remitted the remaining Settlement Amount
to Perry on September 19, 2014 in a check for $1, 712,
515.69. Id. On October 10, 2014, Mohnsam filed an
order to dismiss the federal action. DN 96-1 at 9.
claims he has never been paid for his legal services. DN 1 at
¶ 48. He has requested payment from all parties named in
this suit. Id. at ¶ 50. Perry, Fultz Maddox
Dickens and Nemes claim that Perry paid Mohnsam $25, 000 for
his attorney's fee on September 29, 2014 date. DN 96-1 at
filed this action on July 17, 2017 against Perry, Fultz
Maddox Dickens, Nemes, Martin & Bayley, and Acuity. DN 1.
Mohnsam brought four substantive claims against Fultz Maddox
Dickens: Money Had and Received, Lien for Attorney's
Fees, Negligence Per Se, and Civil Conspiracy. Id.
at 14-21. Mohnsam brought four substantive claims against
Nemes: Breach of Fiduciary Duty, Money Had and Received, Lien
for Attorney's Fees, and Negligence Per Se. Id.
Mohnsam brought one substantive claim against Martin &
Bayley: Lien for Attorney's Fees. Id. Mohnsam
brought three substantive claims against Acuity: Lien for
Attorney's Fees, Negligence Per Se, and Civil Conspiracy.
Id. Mohnsam brought eight substantive claims against