Feerick v. MATRIX MOVING SYSTEMS, INC.

2007 WI App 143, 736 N.W.2d 172, 302 Wis. 2d 464, 2007 Wisc. App. LEXIS 341

• Court: Court of Appeals of Wisconsin
• Decided: April 10, 2007
• Docket: 2006AP776
• Status: Published

Opinions

CURLEY, J.

¶ 1. Gatzke & Ruppelt, S.C. appeals from an order finding it in contempt of court and ordering it to pay an arbitration award, fees and sanctions, as well as from the underlying order for confirmation of the arbitration award. This appeal arises out of a lawsuit in which Matrix Moving Systems, Inc. (Matrix) was sued by William Feerick. The law firm of Gatzke & Ruppelt represented Matrix. That dispute was arbitrated and resulted in an arbitration award against Matrix. Gatzke & Ruppelt twice stated that Matrix had tendered the amount of the arbitration award into its client trust account; however, after the trial court issued the order for confirmation of the arbitration award, Gatzke & Ruppelt said it never received the money. The court determined that Gatzke & Ruppelt was judicially estopped from claiming that it did not have the money, found the law firm in contempt for failure to pay, and ordered it to pay the arbitration award as well as attorney's fees, interest and sanctions.

¶ 2. Gatzke & Ruppelt contends that the trial court erred in applying the doctrine of judicial estoppel, erred in imposing sanctions, and should have granted it relief. We conclude that the trial court erred in determining that Gatzke & Ruppelt was judicially estopped from stating that Matrix had failed to transfer the arbitration award into its trust account, and, as a result, erred in finding Gatzke & Ruppelt in contempt and in ordering sanctions against the firm. We therefore reverse the order for contempt, and the order to pay the arbitration award, fees and sanctions. Further, because the factual issue of whether Matrix ever paid Gatzke & Ruppelt was never resolved, we remand the matter for an evidentiary hearing.

I. Background.

¶ 3. In 2002, William and Georgellen Feerick entered into a contract with Matrix, a moving service, to move their belongings from Brown Deer, Wisconsin to Hernando, Florida. A dispute arose between Matrix and the Feericks over the amount the Feericks owed Matrix for the move, and William Feerick sued Matrix, alleging that Matrix had charged them $15,456.44 more than previously agreed to. Matrix retained the law firm of Gatzke & Ruppelt to represent it in the dispute. The parties agreed to arbitrate the matter, and an arbitration hearing, conducted by a Better Business Bureau arbitrator, was held on March 29, 2005. The arbitrator rendered a decision in favor of Feerick and awarded him $15,456.44 and $6,652.37 in attorney's fees.

¶ 4. Gatzke & Ruppelt, on behalf of Matrix, sought clarification of the decision but was dissatisfied with the clarification it received. James Gatzke, of Gatzke & Ruppelt, informed Feerick by letter dated April 29, 2005, that Matrix would request judicial review in federal court of the arbitrator's decision and seek to have the award set aside on grounds that the decision was inconsistent with the relevant law and reflected the arbitrator's unfamiliarity with the law.¹ The letter further explained that Matrix "will not pay the award suggested by the arbitrator," but also stated:

As a measure of good faith, Matrix has, however, deposited the amount of the award in the trust account of Gatzke & Ruppelt, S.C., where it is intended to be held until such time as the Court makes a competent and just determination as to any damages due and owing either party in this matter.

¶ 5. Whether Gatzke's representation in the letter that the amount of the award had been deposited into Gatzke & Ruppelt's trust account was true, is a disputed issue on appeal. Gatzke & Ruppelt has since filed affidavits indicating that the information was incorrect, and the result of a conversation between Gatzke and one of Gatzke & Ruppelt's associate attorneys, Basil Loeb, where Loeb indicated to Gatzke, based on a statement from Matrix, that Matrix would be depositing the amount into the account, and Gatzke mistakenly understood it to mean that it already had been deposited. Apparently the same information was also represented on an internal memorandum at Gatzke & Ruppelt. Soon after Loeb's conversation with Gatzke, Loeb left Gatzke & Ruppelt and another associate attorney, Chad Levanetz, took over the case.

¶ 6. On June 30, 2005, Feerick filed a complaint requesting confirmation of the arbitration award. Matrix filed an answer on August 12, 2005. On December 6, 2005, Matrix, through Levanetz, filed a supplemental brief opposing confirmation of the arbitration award. Levanetz stated in the background section of the brief that Matrix had deposited the amount of the award into Gatzke & Ruppelt's trust account. According to a later affidavit, Levanetz included the sentence in the background section based entirely on the information contained in Gatzke's April 29, 2005 letter and was unaware that the information in it was incorrect.

¶ 7. On December 19, 2005, the trial court confirmed the arbitration award, and on December 20, 2005, Feerick's attorneys submitted a proposed order to the trial court. Gatzke & Ruppelt did not object to the proposed order. According to Gatzke & Ruppelt, it was at this time that it discovered that the funds were not in its trust account. Feerick does not dispute that Gatzke then informed Feerick's counsel that the funds were not in Gatzke & Ruppelt's possession. Gatzke & Ruppelt withdrew as counsel for Matrix, and Matrix retained the law firm of Hinshaw & Culbertson, LLR to represent it. On January 6, 2006, consistent with the proposed order from December 20, 2005, the trial court issued an order for confirmation of the arbitration award and ordered Gatzke & Ruppelt to release the funds. Gatzke informed Hinshaw & Culbertson that Matrix had not paid Gatzke & Ruppelt the arbitration award.

¶ 8. On February 2, 2006, Feerick filed a motion for civil contempt against Matrix and Gatzke & Rup-pelt, requesting that Gatzke & Ruppelt be ordered to immediately release the arbitration award. On February 10, 2006, Matrix, through Hinshaw & Culbertson, filed a motion opposing Feerick's motion for contempt with respect to Matrix on grounds that Matrix had tendered the full amount of the arbitration award to Gatzke & Ruppelt to be held in Gatzke & Ruppelt's trust account.

¶ 9. At a hearing on the contempt motion, Matrix's counsel insisted that Matrix had "tendered the whole amount of the arbitration award to the Gatzke and Ruppelt firm to be deposited in its client trust account." As support, Matrix's attorneys cited Gatzke's April 29, 2005 letter, as well as Levanetz's December 6, 2005 supplemental brief that referenced the presence of the funds in the account and argued that Gatzke & Ruppelt should be judicially estopped from claiming otherwise. Matrix's attorneys also presented the court with an unsigned affidavit² from Kevin Rude of Matrix that provided in part:

5. Mr. Gatzke requested that Matrix deposit the full amount of the arbitration award in his firm's client trust account, as a show of good faith, pending the outcome of his challenge to the BBB's decision.

6. As confirmed in Mr. Gatzke's correspondence to Mr. Harness of April 29, 2005, as well as the representations made by Attorney Chad Levanetz in Defendant's Supplemental Brief, filed December 6, 2005, Matrix tendered the full amount of the arbitration award to Mr. Gatzke for deposit in the Gatzke & Ruppelt, S.C. client trust account.

¶ 10. Gatzke & Ruppelt, represented in court by another associate attorney, stated that the firm never received the funds from Matrix. As support, it presented affidavits from Gatzke, Loeb and Levanetz explaining that Gatzke & Ruppelt's previous representations in the April 29, 2005 letter and the December 6, 2005 brief, that the firm had received the funds, were not true. The affidavits explained that the incorrect representations were due to a miscommunication between Gatzke and Loeb and an incorrect internal memorandum, and that after Loeb left the firm, the mistake was simply perpetuated by Levanetz.

¶ 11. The trial court determined that because it and the other parties "relied" on the representations in the April 29, 2005 letter and the December 6, 2005 supplemental brief, Gatzke & Ruppelt was judicially estopped from denying that it had the funds in its possession, and emphasized that Gatzke & Ruppelt had failed to object to the proposed order for the confirmation of the award. The court found Gatzke & Ruppelt in contempt for failure to turn over the money and determined that Gatzke & Ruppelt should pay the entire arbitration award and attorney's fees associated with it, $22,109.11, reasonable attorney's fees and post-judgment interest for the contempt motion, as well as an additional $1,000 for every day the firm fails to pay after the order is entered. The court did not find Matrix in contempt.

¶ 12. Gatzke & Ruppelt, now represented by counsel, filed a motion for reconsideration of the contempt finding, to stay the proceedings pending appeal, and for permission to pay the funds into the court. The motion was heard on March 7, 2006. Gatzke & Ruppelt asserted that judicial estoppel was erroneously applied because the firm was only trying to correct a mistake, and requested an evidentiary hearing because the question of where the money was had yet to be resolved. Matrix opposed the motion, claiming that the court did not need to solve the disputed question of fact and insisted instead that because Gatzke & Ruppelt made multiple representations to the court that the firm had the money, Gatzke & Ruppelt waived its opportunity to argue that an evidentiary hearing was necessary. Gatzke & Ruppelt responded that Matrix's defense was unconvincing because, rather than argue that it paid the money, it is arguing waiver. Gatzke & Ruppelt also told the court that it was, in any event, impossible for it to comply with the order because the order required Gatzke & Ruppelt to pay the money from the trust account and there was no money from Matrix in the trust account.

¶ 13. The court affirmed its decision that judicial estoppel barred Gatzke & Ruppelt from asserting that it did not have the funds in its trust account. The court noted that although judicial estoppel does not apply when a position is taken due to mistake, this situation did not involve a mistake and fit one of three scenarios: the representations were true, Gatzke & Ruppelt knew they were true, and tried to convert the money; the representations were not true, Gatzke & Ruppelt knew they were not true, and the firm simply did not have the money; or the representations were not true, and the firm took no steps to find out whether they were true or not. The court again saw it as significant that Gatzke & Ruppelt did not object to the proposed order for confirmation of the arbitration award and emphasized the court's and the parties' "reliance" on the firm's representations. The court thus reaffirmed its finding of contempt against Gatzke & Ruppelt. The court denied the request for an evidentiary hearing on grounds that the firm had waived its right to request one, denied the request for a stay and denied the request to pay the money to the court. The court also explicitly stated that Gatzke & Ruppelt, rather than Matrix, should bear the burden because they made the representations. The court did, however, modify the order to allow Gatzke & Ruppelt to pay Feerick from any account, rather than only the trust account.

¶ 14. On March 17, 2006, a written order was issued finding Gatzke & Ruppelt in contempt and ordering it to pay the $22,199.11 for the arbitration award and the attorney's fees, $443.98 in post-judgment interest, $2,184 in reasonable attorney's fees, and $1,000 per day if it failed to pay those amounts. This appeal follows.

II. Analysis.

¶ 15. Gatzke & Ruppelt contends that the trial court erred in concluding that the doctrine of judicial estoppel barred it from denying that it had the money in its trust account.

¶ 16. Judicial estoppel is an equitable doctrine intended "to protect against a litigant playing 'fast and loose with the courts' by asserting inconsistent positions." State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996) (citation and one set of quotations omitted). The doctrine " 'is not directed to the relationship between the parties, but is intended to protect the judiciary as an institution from the perversion of judicial machinery.'" Id. at 346 (citation omitted). Thus, "[b]e-cause the rule looks toward cold manipulation and not unthinking or confused blunder, it has never been applied where [the] assertions were based on fraud, inadvertence, or mistake." State v. Fleming, 181 Wis. 2d 546, 558, 510 N.W.2d 837 (Ct. App. 1993) (citation and quotations omitted).

¶ 17. For judicial estoppel to apply, three elements must exist:

First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its positiona litigant is not forever bound to a losing argument.

Petty, 201 Wis. 2d at 348 (citation omitted).³ Whether the elements of judicial estoppel have been met is a question of law that this court reviews de novo. Salveson v. Douglas County, 2001 WI 100, 38, 245 Wis. 2d 497, 630 N.W.2d 182.

¶ 18. Gatzke & Ruppelt contends that the trial court erred in applying judicial estoppel because the three elements of judicial estoppel were not present. Gatzke & Ruppelt argues that rather than the "cold manipulation" required for judicial estoppel, this is a case of a simple mistake caused by attorney turnover at the firm. Feerick disagrees and asserts that judicial estop-pel was properly applied:

Appellant maintained a position to the Trial Court for approximately nine (9) months that funds were held in its trust account to meet an obligation of an arbitration award. Appellant convinced the Trial Court of this position to the extent that the Trial Court signed an order, absent objection, requiring release of the funds from the trust account. Later, Appellant refused to comply with the order and took another position in the contempt proceeding that it did not ever have the funds in its trust account. Appellant inserted itself as a party into the litigation between Respondent and Matrix by taking the position that it would hold the money in its trust account and later refusing to turn over the money.

¶ 19. We agree with Gatzke & Ruppelt that the facts currently of record in this case do not satisfy the criteria for judicial estoppel.

¶ 20. First, a later "position" was not clearly inconsistent with an earlier position. Here, there were no earlier and later "positions." Case law shows that in the context of judicial estoppel, inconsistent "positions" refers to inconsistent legal strategies or legal arguments. For instance, in Van Deurzen v. Yamaha Motor Corp. USA, 2004 WI App 194, 276 Wis. 2d 815, 688 N.W.2d 777, the contention that maritime law was inapplicable because a lake was not navigable clearly contradicted a position held at trial that maritime law applied because the accident occurred on navigable waters. Id., 5. Likewise, in State v. Michels, 141 Wis. 2d 81, 414 N.W.2d 311 (Ct. App. 1987), a defendant was precluded from arguing that insufficient evidence existed for his conviction because the argument was directly contrary to the defendant's previous argument that there was sufficient evidence for a lesser offense. Id. at 97-98. The statements by Gatzke & Ruppelt that Matrix had transferred the money into its trust account were not a legal strategy or argument that was later contradicted, but merely factual representations: the reference in the April 29, 2005 letter was included "as a measure of good faith"; the reference in the December 6, 2005 brief was a sentence in the background section and was completely unrelated to the argument.

¶ 21. Similarly, judicial estoppel was improperly applied also because the third element, that a party to be estopped must have "convinced the court to adopt its position," cannot be present here. In Michels, the defendant was judicially estopped on appeal from arguing that the evidence was insufficient to support his conviction for manslaughter, when he had requested the trial court submit manslaughter to the jury as a lesser-included offense of second-degree murder. Id. Similarly, in State v. English-Lancaster, 2002 WI App 74, 252 Wis. 2d 388, 642 N.W.2d 627, we held that the defendant was judicially estopped from challenging the sufficiency of a cautionary instruction because "[a]t trial he urged the court to generate a cautionary instruction and now he maintains that a cautionary instruction was insufficient." Id., 22.

¶ 22. In Olson v. Darlington Mutual Insurance Co., 2006 WI App 204, 296 Wis. 2d 716, 723 N.W.2d 713, we recently addressed the question of what constitutes "convincing a court to adopt a position." Id., 5-7. We contrasted Michels and English-Lancaster with the facts in Olson, and noted that, unlike English-Lancaster, where the defendant successfully requested a jury instruction, and Michels, where the defendant successfully requested submission of a lesser-included offense, in Olson the defendant merely asked for a limited amount of damages (less than $75,000); however, the court did not adopt that position. Olson, 723 N.W.2d 713, 7. In Olson, the request for an amount less than $75,000 was not equivalent to "convincing the court to adopt a position" in the defendant's favor. Id. Thus, for a court to adopt a position, not only must the court agree with a "position," but a party must also specifically request that the court adopt that particular "position."

¶ 23. This did not occur here. Unlike Olson, where the defendant actually tried, albeit unsuccessfully, to ask for a particular amount of damages, here Gatzke & Ruppelt did not tiy to convince the court of anything related to the presence of the arbitration award in its trust account; rather, what it was trying to convince the court to "adopt" was its "position" that the arbitration award should not be confirmed because the arbitrator had applied the incorrect law. Whether Matrix had transferred the award money to Gatzke & Ruppelt, and whether that money was in Gatzke & Ruppelt's trust account was not an issue that was contested and, as already noted, Gatzke & Ruppelt did not advance a "position" with respect to whether any money was held in its trust account. Thus, because the references to the trust account were not a contested issue, Gatzke & Ruppelt never tried to "convince" the court of a "position" with respect to the amount of money in its trust account; there therefore was no "position" related to the trust account that the -trial court could have "adopted." Feerick's focus on the trial court signing the order requiring release of the funds absent an objection does not change the fact that the only legal argument concerned the issue of whether the arbitration award should be confirmed.⁴ Thus, while the trial court was certainly justified in accepting the representations in the letter and the supplemental brief as a representation to forestall the collection efforts until the arbitration award is confirmed or overturned, in so doing the trial court does not adopt a position within the meaning of Petty to satisfy the requirements of judicial estoppel.

¶ 24. Because we conclude that the trial court erred in concluding that Gatzke & Ruppelt was judicially estopped from asserting that it did not have the money in its trust account, we reverse that determination.

¶ 25. In addition, based on its determination that judicial estoppel prevented Gatzke & Ruppelt from stating that it did not have the money in its trust account, the trial court found Gatzke & Ruppelt in contempt of court. The contempt finding was in turn the basis for harsh sanctions that the trial court levied against Gatzke & Ruppelt. Because we reverse the determination that Gatzke & Ruppelt was judicially estopped from stating that Matrix had failed to transfer the money into its trust account, we also reverse the finding of contempt and the sanctions ordered against Gatzke & Ruppelt.

¶ 26. Finally, the factual issue of where the money is located has yet to be resolved. At the hearing on the motion for reconsideration, the trial court speculated that there were three possibilities regarding Gatzke & Ruppelt's representations that it had the money: the representations were true, Gatzke & Ruppelt knew it, and tried to convert the money; the representations were not true, Gatzke & Ruppelt knew it and they did not have the money; or the representations were not true, and the firm took no steps to find out whether they were true or not. It appears, based on both the contempt finding and the sanctions, that the trial court believed the first option was true and that Gatzke & Ruppelt received the money, converted it, and simply refused to hand it over to Feerick. The trial court never made a factual finding to that effect however. This was error. See McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971) (trial court's failure to delineate the factors that influenced its decision constitutes an erroneous exercise of discretion).

¶ 27. Indeed, it appears that after Gatzke & Ruppelt informed the court that Matrix had never paid the money into its trust account, the trial court was not concerned with the actual factual question of whether Gatzke & Ruppelt was telling the truth.⁵ Rather, without an evidentiary hearing to determine what, if any, money was in fact paid to Gatzke & Ruppelt by Matrix, the trial court simply ordered the law firm to bear the burden and imposed sanctions against the law firm for failure to pay. This was also error. See Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1, 10, 578 N.W.2d 633 (1998) ("For a reviewing court to determine whether the sanctions imposed in a particular case are just, the circuit court must make a record of the reasons for imposing sanctions in that case.").

¶ 28. Because the factual question of whether Matrix ever paid Gatzke & Ruppelt was never resolved, we remand the matter to the trial court for an eviden-tiary hearing to determine whether Matrix ever transferred the money meant to cover the arbitration award to Gatzke & Ruppelt. The trial court should also determine whether the principle of equitable estoppel applies; that is, whether Feerick, to his detriment, relied on an action by either Gatzke & Ruppelt or Matrix.

¶ 29. If Matrix never paid the money to Gatzke & Ruppelt, then the issue here is, as Gatzke & Ruppelt contends, nothing more than an unfortunate, yet honest and simple mistake. If this is the case, the mistake can easily be corrected and the trial court should order Matrix to do what it should have done long ago: pay Feerick the arbitration award and attorney's fees. Clearly, if the money is collectible from Matrix, there was no detriment to Feerick and equitable estoppel does not apply.⁶ If, however, Matrix did pay the money to Gatzke & Ruppelt and it was lost, misplaced, or, as the trial court appeared to imply, converted by Gatzke & Ruppelt, then of course Gatzke & Ruppelt is to blame and Matrix is not responsible for paying the money a second time.⁷

By the Court. — Orders reversed and cause remanded for further proceedings consistent with this opinion.

1 No such action was sought, however.

2 A signed version of the affidavit was later submitted to the court.

3 Judicial estoppel has most often been properly invoked in criminal cases where the defendant makes an argument on appeal that is inconsistent with the argument made at the trial court level. Harrison v. LIRC, 187 Wis. 2d 491, 496, 523 N.W.2d 138 (Ct. App. 1994); see, e.g., State v. Edwardsen, 146 Wis. 2d 198, 209-10, 430 N.W.2d 604 (Ct. App. 1988); State v. Hardwick, 144 Wis. 2d 54, 61, 422 N.W.2d 922 (Ct. App. 1988). Judicial estoppel has also been raised in a state discrimination action when a person alleged that he was capable of performing his job, when he had stated before a federal administrative law judge in disability proceedings that he was incapable of performing his job, Harrison, 187 Wis. 2d at 493-96, 499-500 (judicial estoppel inapplicable because statements not "clearly inconsistent" since record did not establish whether definition of "capable" under each action included option of working with accommodations), and where a person failed to disclose the existence of a promissory note during divorce proceedings and later tried to collect on the note, Coconate v. Schwanz, 165 Wis. 2d 226, 231, 477 N.W.2d 74 (Ct. App. 1991) (failure to list a note was not clearly inconsistent with an assertion that the note was valid and enforceable).

4 In Olson v. Darlington Mutual Insurance Co., 2006 WI App 204, 296 Wis. 2d 716, 723 N.W.2d 713, Olson also argued that the use of the terms "both cases" and "first court" in State v. Petty, 201 Wis. 2d 337, 348, 548 N.W.2d 817 (1996), dictates that there must be two distinct cases to invoke the doctrine and that judicial estoppel therefore did not apply to her because her case involved a single case, and we concluded that because the facts did not meet the requirement of "convincing the trial court to adopt her position," it was unnecessary to address whether judicial estoppel is available within the course of a single proceeding. Olson, 723 N.W.2d 713, ¶ 5. Having already concluded that Gatzke & Ruppelt did not present a "position" and that the court did not adopt its "position," we also need not determine whether judicial estoppel may be applied in a single proceeding.

5 We note that it is difficult to assess Matrix's behavior and statements to the court, given that it did not file a brief in this appeal, even though the dispute at this point is between Matrix and Gatzke & Ruppelt.

6 We find it baffling that after Gatzke & Ruppelt informed the court that Matrix had never transferred the money, Matrix did not appear concerned with proving that it did transfer the money. In fact, it seems to have tried to dodge the question of whether Gatzke & Ruppelt ever received the money. The only hint in the record indicating that the money was paid is an affidavit by Matrix stating:

6. Mr. Gatzke requested that Matrix deposit the full amount of the arbitration award in his firm's client trust account, as a show of good faith, pending the outcome of his challenge to the BBB's decision.

6. As confirmed in Mr. Gatzke's correspondence to Mr. Harness of April 29, 2005, as well as the representations made by Attorney Chad Levanetz in Defendant's Supplemental Brief, filed December 6, 2005, Matrix tendered the full amount of the arbitration award to Mr. Gatzke for deposit in the Gatzke & Ruppelt, S.C. client trust account.

This affidavit raises more questions than it answers. It is drafted to state only that the money was "requested," and relies on only the same April 29, 2005 letter from Gatzke & Ruppelt that the firm now insists was based on a miscommunication, and the same brief that Gatzke & Ruppelt insists was drafted based on the erroneous information contained in the April 29, 2005 letter, as evidence that the money was transferred! If Matrix did pay Gatzke & Ruppelt the amount of the arbitration award, the wording of this affidavit is suspicious.

At the hearing on the motion for reconsideration, counsel for Gatzke & Ruppelt in fact inquired about exactly why Matrix was not stating that it had paid the money. Oddly, their entire arguments, with which, as we have seen, the trial court ultimately agreed, centered on judicial estoppel and opposing an evidentiary hearing to find out exactly where the money was, that had been proposed by Gatzke & Ruppelt's counsel.

These are matters the trial court will have to resolve at an evidentiary hearing.

7 The dissent misapplies the doctrine of judicial estoppel in a fact situation to which, as already explained above, it does not belong. Beyond calling our analysis "lengthy [and] technical," and claiming that it "misses the point," Dissent, ¶ 32, the dissent does not explain how our conclusion that the doctrine of judicial estoppel is inapplicable, is allegedly erroneous.

Moreover, the dissent apparently asserts that Gatzke & Ruppelt ought to have presented "copies of the firm trust account records," Dissent, ¶ 40, and states that "conspicuous by their absence are documents that should easily establish the condition of Gatzke & Ruppelt's trust account," id. This exact confusion about whether the money was in fact in the trust account is, however, precisely why we are remanding this case to the trial court for a determination of whether the money was ever paid. The dissent's concern over the contents of the trust account is thus perplexing in light of the dissent's view that no evidentiary hearing is necessary.

The dissent also glosses over Matrix's role. Matrix was ordered to pay the arbitration award, but it has yet to be resolved whether it ever did. The dissent instead is of the opinion that "[t]here is no reason in the pending action to further involve Feerick or to further delay payment to him of the amounts already ordered by the trial court," Dissent, ¶ 50 (emphasis in dissent). Although the dissent is correct in noting that Feerick is certainly not to blame for this case being before us on appeal, by being willing to take Feerick out of the action and concluding that Gatzke & Ruppelt must pay him the amount of the judgment, the dissent sees nothing wrong with the possibility of letting Matrix get away with cheating its former lawyers out of thousands of dollars. We cannot agree that a determination of whether Matrix ever paid Gatzke & Ruppelt is unnecessary for resolving this case.