One attorney sues another for breach of contract

By Chris Dickerson and Kyla Asbury | Jun 2, 2015

CHARLESTON – A Charleston attorney is suing Kathy Brown Law after he claims the law firm breached its contract and was unjustly enriched at his expense.

Roger A. Decanio, along with the Sutter Law Firm, claim on Feb. 15, 2013, Deborah Sawyers entered into a contract for legal representation with Kathy Brown Law for the purpose of filing suit or otherwise making a claim against Heartland of Beckley, according to a complaint filed in Kanawha Circuit Court.

The plaintiffs claim Kathy Brown Law was authorized to hire associate counsel and contacted Decanio of Sutter Law Firm with respect to the investigation and pursuit of the client's wrongful death and medical malpractice claims against Heartland of Beckley.

Kathy Brown Law also inquired as to if the plaintiffs would be interested in working on the client's case with the law firm and advancing the expenses for the investigation and prosecution and/or litigation and arbitration of the client's claims, according to the suit.

The plaintiffs claim on Oct. 2, 2013, a contract between Sutter and Kathy Brown was executed concerning the case and the contract specified that the fee was to be split 50/50 between the law firms.

On Jan. 16, the contract between the law firms was amended during a meeting and the amended contract stated that Sutter would receive 50 percent of the legal fees, Kathy Brown Law would receive 40 percent and Decanio would receive 10 percent, according to the suit.

The plaintiffs claim after the case was successfully mediated with a confidential settlement, a hearing was set for April 29 and a few days prior to the hearing to approve the settlement, Kathy Brown Law sent a letter dated April 24 to the plaintiffs, complaining of the billing of expenses, including bills for a nurse consultant.

Without any further explanation than what was stated in the letter, Kathy Brown Law indicated that the client no longer wished to have the plaintiffs work on the case, even though the client, herself, has never voiced any complaint directly toward the plaintiffs about the quality of their work or the expenses incurred, according to the suit.

The plaintiffs claim Kathy Brown Law "seeks to be unjustly enriched" at the plaintiffs' expense.

The plaintiffs have incurred approximately $19,390.17 in legal expenses for the prosecution of the client's claims against Heartland of Beckley, according to the suit.

The plaintiffs claim Kathy Brown Law breached its contract with the plaintiffs.

Brown, through her attorney, Tim Houston, filed a combined motion to dismiss and supporting memorandum of law on May 27.

In her motion, Brown claims for the purposes of the breach of contract claim, the plaintiffs failed to state a claim upon which relief can be granted.

"The Circuit Court of Raleigh County has already awarded plaintiffs their attorneys' fees and expenses in the Heartland of Beckley litigation, and plaintiffs have failed to please the existence of a contract covering the Coll and Keffer matters," the motion states.

Inasmuch as the two cases in which the plaintiffs claim to have a fee interest are in their infant stages, the plaintiffs' claims for attorneys' fees are not ripe, according to the motion.

The plaintiffs have already been awarded the attorneys' fees, costs and expenses they seek to recover in their complaint, such that a portion of the breach of contract claim and all of the unjust enrichment claim are moot.

"Finally, Roger Decanio lacks standing to pursue a claim for unjust enrichment, while the unjust enrichment claim asserted by The Sutter Law Firm is barred as a matter of law by the existence of an express contract," the motion states.

Kathy Brown Law and the Sutter Law Firm entered into a contract regarding the Heartland of Beckley matter, according to the motion. They did so with the understanding that each firm's employees would participate in the litigation process.

The motion states that any work performed by Decanio on the Heartland of Beckley matter was incident to his employment with The Sutter Law Firm, rather than because of anything Kathy Brown Law did or did not do.

Decanio has no more standing to file a lawsuit against Kathy Brown Law for unjust enrichment than he owuld for unpaid wages if The Sutter Law Firm one day decided to stop paying his salary, according to the motion.

"Any recourse Mr. Decanio may or may not have for going 'above and beyong' lies with his employer ... not a third-party with whom his employer contracted in October 2013," the motion states.

Because Decanio has failed to articulate any injury-in-fact to pursue a claim for unjust enrichment, the unjust enrichment claim should be dismissed with prejudice, according to the motion.

In the Coll and Keffer matters, which involve another lawsuit filed by Sawyers against Dr. Mary Coll and Scott Keffer Inc., The Sutter Law Firm and Decanio was fired by Sawyers in April and they formally withdrew from the case.

"On April 24, 2015, The Sutter Firm (and Mr. Decanio, by association) were fired after it was discovered they had attempted to defraud Ms. Sawyers out of approximately $7,000 from settlement proceeds obtained during mediation with Heartland of Beckley in the parallel arbitration proceeding," Sawyers' response to motion to withdraw as counsel in the Coll and Keffer lawsuit states.

Despite the relief prayed for in Sutter's motion, West Virginia law is clear, the response states.

"Because The Sutter Firm and Mr. Decanio were fired by Ms. Sawyers for cause … any 'charging lien' is limited to the 'quantum meruit for services rendered up to the time of discharge' by Ms. Sawyers," the response states.

Brown states that Sutter had already been paid $65,390.17, $19,390.17 as reimbursement for expenses incurred prior to its termination and $46,000 in attorneys' fees as its 50 percent share from the settlement with Heartland of Beckley, according to the response.

"Kathy Brown Law denies all the allegations in the complaint, and never in all her years of practicing law has Ms. Brown had to take these sorts of actions to protect a client," Houston said, noting that Decanio and the Sutter firm sent back those checks of $46,000 and $19,390.17 last week.

The plaintiffs are seeking compensatory damages. They are being represented by William C. Forbes and W. Jessee Forbes of Forbes Law Offices PLLC.

The case is assigned to Circuit Judge Carrie Webster.

Kanawha Circuit Court case number: 15-C-813

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