Hilario v. Taft, Stettinius & Hollister, L.L.P.

955 N.E.2d 391, 194 Ohio App. 3d 157
CourtOhio Court of Appeals
DecidedApril 7, 2011
DocketNo. 95262
StatusPublished

This text of 955 N.E.2d 391 (Hilario v. Taft, Stettinius & Hollister, L.L.P.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hilario v. Taft, Stettinius & Hollister, L.L.P., 955 N.E.2d 391, 194 Ohio App. 3d 157 (Ohio Ct. App. 2011).

Opinion

James J. Sweeney, Judge.

{¶ 1} Plaintiff-appellant, Nene Hilario, appeals from the order of the trial court that awarded summary judgment to defendants-appellees, Taft, Stettinius & Hollister, L.L.P. (“Taft”), and attorney Peter Poulos (collectively referred to as “defendants”), in Hilario’s action for legal malpractice in connection with the preparation of a “Personal Services Agreement” (“PSA”) that required Hilario to pay Joseph Santos, Hilario’s former interpreter, personal assistant, and manager, six percent of Hilario’s “annual worldwide gross revenue” for seven years. For the reasons set forth below, we reverse and remand for further proceedings.

{¶ 2} The record reveals that on February 1, 2007, Hilario, a Brazilian-born professional basketball player who currently plays for the National Basketball Association’s (“NBA”) Denver Nuggets, filed a complaint against defendants and Santos. Hilario asserted claims for legal malpractice, fraud, and negligent misrepresentation. He then voluntarily dismissed the original action without prejudice on March 29, 2007, during the pendency of an action for breach of contract that Santos filed against Hilario in Colorado. Thereafter, on March 28, 2008, after the Colorado proceedings terminated in Hilario’s favor,1 he then refiled the instant matter.

{¶ 3} Hilario alleged that after the defendants had represented him in a previous matter, Santos contacted Poulos about drafting a contract between Santos and Hilario and met with him outside Hilario’s presence and knowledge. Hilario further alleged that Santos had multiple private communications with Poulos.

[160]*160{¶ 4} According to Hilario, on May 4, 2005, Santos sent Poulos an e-mail in which he stated that he needed the contract to “cover [his] ass in case of any future problems.” Santos’s e-mail stated as follows:

Peter,
Hope this email finds you well. Nuggets suck!
Before going into the details of the contract I want to talk about a couple of points to remember. Nene and I want this contract to be fairly simple and straight forward—as short as possible. Having said that, I need the contract to cover my ass in case of any future problems.
Here are the details of the contract.
1. Duration: 7 years beginning November 15, 2005-November 14, 2012.
2. Personal Services—eventually this contract will turn into my salary as CEO of Nene31 Inc.
3. Duties: Handle or at least be aware of all Nene’s business affairs—Bills, Investments, Insurance Policies, Analyze Marketing Opps, Administer Charitable Contributions, Media Opps.
4. Compensation: 6% of NBA Basketball Salary
5. Expenses: Nene will cover all reasonable expenses involving Office space/supplies/bills, Nene31 Inc. Travel / hotel business related.
Do we need a termination clause?
NeNe [sic] didn’t want this designated as a contract per se, more as guidelines. When we meet with everyone in Cleveland to go over all his stuff it was going to be presented. I thought that way it could be official. He will sign the contract if he has to [,] but I know he feels that his verbal commitment will suffice.

(Emphasis added.)

{¶ 5} Poulos subsequently drafted a waiver of conflict of interest to be signed by Hilario and Santos and prepared an identical draft of the document in Portuguese, Hilario’s native language. This document stated:

As we have discussed, I will be representing both you and Joe Santos as parties to the Personal Services Agreement (the “Agreement”) signed July 28, 2005. You hereby acknowledge that both parties agreed to the terms of the Agreement without my involvement[,] and my representation is limited to putting the agreed terms in writing.
[161]*161By signing this letter, you agree to waive any conflict of interest that may exist by virtue of my representation of both you and Joe Santos as parties to the Agreement.

{¶ 6} Poulos then prepared English and Portuguese versions of the PSA for Santos and Hilario to sign. The PSA stated that as “compensation for Santos’ services, as set forth in this agreement, Hilario agrees to pay Santos six percent (6%) of his annual worldwide gross revenue” for seven years.

{¶ 7} Hilario alleged that in the meeting at Taft on July 28, 2005, Santos served as his translator during the execution of the documents and that he did not have a meaningful conversation with Poulos regarding the terms of the documents. Hilario also alleged that defendants purported to represent both Hilario and Santos as stated in the first sentence of the waiver, that he was never advised to obtain independent counsel, and that the conflict of interest is nonwaivable.

{¶ 8} Hilario further alleged that Poulos never discussed the terms of the PSA with him and that Santos, the translator for the meeting, represented that Hilario’s NBA income and other funds that Santos had no responsibility for generating would not be included within the PSA. Finally, Hilario alleged that he did not fully understand the terms of the documents and that he did not provide informed consent to their provisions.

{¶ 9} Poulos acknowledged that he had previously represented Hilario in an unrelated dispute with his Brazilian team. Poulos also admitted that he had discussed the PSA with Santos, apart from Hilario, “a number of times” from April to July 2005 and had a meeting with Santos on or about June 20, 2005. Poulos asserted, however, that he provided limited representation “in connection with documenting in writing the terms of the [PSA] upon which said terms Plaintiff and Santos had previously independently agreed.” Poulos also admitted that Hilario was not advised to consult with other counsel prior to executing the PSA, but he maintained that he consulted with him and reasonably believed that Hilario understood the terms of the PSA as well as the July 28, 2005 conflict-of-interest letter.

{¶ 10} On September 9, 2009, defendants moved for summary judgment, asserting that the action as originally filed in February 2007 was barred by the statute of limitations. Defendants asserted that the matter was not filed within one year of (1) the July 28, 2005 termination of the attorney-client relationship with Poulos, or, in the alternative, (2) the August 2005 conversation between Hilario and his employee in Brazil, Jose Xavier (“Xavier”), regarding the PSA.

{¶ 11} In opposition, Hilario asserted that following the execution of the PSA, Santos continued to maintain control over Hilario’s finances and falsely repre[162]*162sented that Hilario was in sound financial condition. Hilario averred that he did not learn of the terms of the PSA until the week of March 6, 2006, the point at which new counsel advised him about the agreement, in response to Santos’s lawsuit that demanded six percent of Hilario’s gross revenue.

{¶ 12} The trial court granted defendants’ motion for summary judgment and concluded:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
955 N.E.2d 391, 194 Ohio App. 3d 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilario-v-taft-stettinius-hollister-llp-ohioctapp-2011.