Carlson v. Brandt

250 B.R. 366, 2000 U.S. Dist. LEXIS 10645, 2000 WL 875939
CourtDistrict Court, N.D. Illinois
DecidedJune 29, 2000
Docket99 C 6021
StatusPublished
Cited by14 cases

This text of 250 B.R. 366 (Carlson v. Brandt) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlson v. Brandt, 250 B.R. 366, 2000 U.S. Dist. LEXIS 10645, 2000 WL 875939 (N.D. Ill. 2000).

Opinion

MEMORANDUM OPINION AND ORDER

ASPEN, Chief Judge.

Defendant-Appellant Dennis Carlson (the debtor) voluntarily filed a petition for bankruptcy relief under Chapter 11 on April 16, 1996. Two months later, he converted his bankruptcy petition to one for relief under Chapter 7, at which point plaintiff-appellee William Brandt, Jr. was appointed to serve as the Trustee in the case. Brandt filed a three-count adversary complaint against Carlson in the bankruptcy court, arguing that the debtor should be denied a discharge because he: *369 1) concealed and transferred property in violation of § 727(a)(2) of the Bankruptcy ' Code; 2) failed to keep books and records sufficient to enable the Trustee to determine his financial condition with reasonable certainty, in violation of § 727(a)(8); and 3) made false oaths in violation of § 727(a)(4). The bankruptcy court held a bench trial, after which it issued findings of fact and conclusions of law in a published opinion which ruled against Carlson on all counts and denied him a discharge. See In re Carlson, 231 B.R. 640 (Bankr.N.D.Ill.1999). Carlson now appeals all of the bankruptcy court’s determinations.

Background

First we briefly address Carlson’s jurisdictional challenge. As far as this Court is concerned, trustee Brandt submitted a proper motion to vacate the 12/28/99 judgment in favor of debtor Carlson. We granted that motion and set a briefing schedule on the appeal before us now. Even though Brandt technically brought his motion to vacate under Federal Rule of Civil Procedure 60(b) instead of Federal Rule of Bankruptcy Procedure 8015, the U.S. Trustee’s brief in support of Brandt’s motion cleared up the confusion and Brandt filed his motion within the ten-day time period proscribed by Rule 8015, so we decided to treat it as such. And this Court is confident that it has the discretion, within a reasonable period of time, to correct or vacate judgments mistakenly made, which is precisely what happened when we granted judgment for Carlson in open court in Brandt’s absence. We conclude that jurisdiction over this appeal is proper, and proceed now to the merits.

In a bankruptcy appeal, we examine findings of fact for clear error, accepting the bankruptcy court’s version of the facts unless, “ ‘although there is evidence to support [the findings, we are] left with the definite and firm conviction that a mistake has been committed.’ ” In the Matter of Sheridan, 57 F.3d 627, 633 (7th Cir.1995) (internal citations omitted). To be clearly erroneous, “‘a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week old, unrefrigerated dead fish.’ ” Piraino v. Int’l Orientation Resources, Inc., 137 F.3d 987, 990 (7th Cir.1998) (quoting Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988)). Furthermore, we give due regard to the trial judge’s assessment of the credibility of the witnesses observed. Piraino, 137 F.3d at 990. We review all questions of law de novo. See Sheridan, 57 F.3d at 633.

After reviewing the common law record as well as the bankruptcy trial transcripts, we find Judge Schmetterer’s factual conclusions to be reasonable*in light of the evidence presented, so we will not second-guess them. Those findings are laid out in detail in the bankruptcy court’s memorandum opinion and order, see Carlson, 231 B.R. at 643-51, so we will not recite the facts in their entirety here. We will, however, summarize them for background purposes.

Debtor Carlson is an Illinois attorney who, prior to filing for bankruptcy, primarily represented personal injury plaintiffs on a contingency fee basis. On December 27, 1995, three and a half months before Carlson filed his bankruptcy petition, he and William Hourigan — a friend and colleague of Carlson’s who represents Carlson in this appeal — executed what they call a “Practice Merger Agreement” (PMA). 1 The agreement purported to merge the practices of Carlson and Hourigan (after a certain date they were to share an office), apparently so that Hourigan could help Carlson manage his caseload. The PMA did not explain how each attorney’s pending cases would be treated or clarify whether all of each attorney’s cases would *370 be covered by it. Rather, the PMA stated that “Carlson is an independent licensed attorney and an independent contractor ... [who] is free to handle cases assigned to him in the manner he sees fit,” and “it is agreed that William E. Hourigan will be available to consult and advise, but when, where and how cases which are assigned to Dennis E. Carlson are handled is strictly up to him.” Carlson and Hourigan testified at trial that the PMA did not create a partnership or professional corporation, and that neither was an employee of the other. When the PMA was signed, not only did Carlson lack sufficient assets to pay his debts, but he knew that he was facing disciplinary action that would likely cause him further financial distress. Hourigan was aware too that Carlson was facing possible disciplinary action as well as large claimssfor personal sanctions he incurred while litigating, and the PMA itself acknowledged that at the time of signing Carlson’s license to practice law was in jeopardy.

Although Carlson and Hourigan eventually testified that they never expected the PMA to cover all of Carlson’s cases, the parties did not create any list indicating which of Carlson’s pending cases would be included under the PMA until the bankruptcy court ordered Carlson to do so in September 1996. At trial, Hourigan testified that only complex cases were intended to be included, while Carlson testified that only contingency fee cases were intended to be included, and the PMA is silent on the matter. The PMA lacks any contractual language of assignment, yet both Carlson and Hourigan testified at trial that they intended for Carlson’s cases and fees to belong to Hourigan as of the PMA’s effective date. Though the agreement did not so specify, Carlson testified that he understood it to create a contractual obligation to hand over all of his fees to Houri-gan, but that he did not consider it to constitute an “assignment” of his cases or fees. None of Carlson’s clients consented in writing to a division or sharing of legal fees between Carlson and Hourigan; indeed it appears that his clients were not even notified of the merger.

The agreement set up a complicated schedule regarding “compensation” for Carlson.

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Cite This Page — Counsel Stack

Bluebook (online)
250 B.R. 366, 2000 U.S. Dist. LEXIS 10645, 2000 WL 875939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlson-v-brandt-ilnd-2000.