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Mohnsam v. Nemes

United States District Court, W.D. Kentucky, Louisville

November 14, 2019

KURT K. MOHNSAM PLAINTIFF
v.
JASON M. NEMES, ET AL. DEFENDANT

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE

         I. Introduction

         This 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 defendant.

         II. Legal Standard

         Summary 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).

         The 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).

         III. Factual Background

         Perry 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.

         Martin & 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.

         Martin & 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 at 6.

         In 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.

         Mohnsam 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 8-9.

         IV. Procedural History

         Mohnsam 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 ...


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