Langrock, Sperry & Wool, LLP v. Felis, 149-2-13 Cncv (Toor, J., Mar. 9, 2015).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
VERMONT SUPERIOR COURT CHITTENDEN UNIT CIVIL DIVISION
│ LANGROCK, SPERRY & WOOL, LLP │ Plaintiff │ │ v. │ Docket No. 149-2-13 C ncv │ │ KENNETH P. FELIS │ Defendant │ │
RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND/OR MOTION IN LIMINE and PLAINTIFF’S MOTION IN LIMINE
Plaintiff Langrock, Sperry & Wool (Langrock), a law firm, brings this case to collect
about $65,000 in legal fees from Defendant Felis, a former client. In March of 2013, Defendant
filed a counterclaim asserting that (1) the parties had agreed the fees could be paid after the
divorce case was over, and that the appeal was still pending, (2) Langrock engaged in intentional
infliction of emotional distress by various acts related to collection attempts, and (3) Langrock
engaged in consumer fraud. Plaintiff previously filed two summary judgment motions, both of
which were denied in November 2013 by Judge Pearson. In December 2013, Felis amended the
counterclaim to add claims for breach of contract, promissory estoppel, breach of the covenant of
good faith, and attorney malpractice. Langrock again seeks summary judgment on all claims, or
in the alternative the exclusion of certain evidence at trial. James W. Runcie, Esq. represents
Plaintiff; Edward B. French, Jr. and Jennifer Colin, Esqs. represent Defendant. The Facts
Both the disputed and the undisputed facts in this case are lengthy and the court will not
attempt to address them all here. The court notes, however, that by merely saying “disputed’ in
response to a statement submitted by Plaintiff, Defendant has not actually put those facts in
dispute. Rule 56 requires record evidence to support any such challenge. Thus, the court treats
many such claims of dispute as undisputed. V.R.C.P. 56(c) and (e).
Conclusions of Law
1. Breach of Contract
It is undisputed that there was a contract for legal fees. Felis does not dispute that he was
billed for at least $65,000 in fees that he has not paid.1 Even if Felis proved at trial that there
was an agreement to defer payment until the divorce case was over, it is now over. The funds are
due unless Langrock breached the contract. Felis claims that the contract was breached by an
email from Attorney Carlson terminating the relationship. The email on its face does no such
thing. It asks that they discuss the issue of getting the bill paid. Felis is the one who terminated
the contract. Langrock is entitled to summary judgment on this claim.
2. Promissory Estoppel
The promise that Felis alleges is that the fees did not need to be paid until the divorce was
done. The relief sought is to have “this Court enforce the Plaintiff’s promise” to wait until after
the divorce to collect the fees. Amended Counterclaim, ¶ 58 and “wherefore clause” ¶ g. The
divorce is now done; the fees are due. There is no relief to grant. This claim is moot.
1 Langrock’s statement of material facts says the firm was owed “more than $65,000” and Felis responds first that he was billed $65,000, though he disputes “owing” it, and then that he was billed $67,546.72. Ptf’s Statement of Material Facts ¶ 28 and response thereto; Def’s Statement of Material Facts ¶ 43. The court takes it as undisputed that at least $65,000 was billed. Felis’s claim that it was not “owed” is based upon the timing of the request—now a moot point, as the divorce is done—and whether he has setoffs from his counterclaims. See Def’s Response to Ptf’s Statement of Material acts ¶ 28, and Def’s Statement of Material Facts ¶¶ 93 and 96. 2 3. Breach of the Covenant of Good Faith
This claim rests upon the contract between the parties. No separate conduct is asserted as
the basis for this claim. Thus, it cannot succeed. Ferrisburgh Realty Investors v. Schumacher,
2010 VT 6, ¶ 26, 187 Vt. 309, 322.
4. Negligence (Attorney Malpractice)
To prove a claim of malpractice by an attorney, Felis must prove that Langrock’s actions
fell below the standard of care for the type of case in question, and that Felis was harmed as a
result. Estate of Fleming v. Nicholson, 168 Vt. 495, 497 (1998). That is, he must prove that he
would have had a better result in the divorce case but for the errors. Knott v. Pratt, 158 Vt. 334,
336 (1992)(“In order to prevail in the lawyer negligence action, plaintiff had to show that she
would have prevailed in her claim against her father’s estate but for defendant’s failure.”).
As Felis concedes, an expert witness is generally required to prove the standard of care,
the breach, and the proximate cause. Id. at 497. He proffers an opinion by attorney Herbert
Ogden in support of his claim. Ex. SS to Def’s Statement of Material Facts. That opinion lists a
number of actions that Ogden believes fell below the standard of care, but states no opinion
about the harm caused thereby. Felis concedes in his response to Langrock’s statement of facts
that Ogden cannot provide evidence with regard to how Felis was harmed: that is, with regard to
proximate cause and damages. See Plaintiff’s Statement of Material Facts ¶ 22 and response
thereto. He argues, however, that this case meets the exception to the general rule: where the
“professional’s lack of care is so apparent that only common knowledge and experience are
needed to comprehend it.” Nicholson, 168 Vt. at 497-98, quoted in Defendant’s Mem. in Opp. at
32. He argues that based upon his expert’s testimony that Langrock made errors in the divorce
case, the jury can itself determine the harm.
3 The court disagrees. The sort of case that does not require expert testimony might be, for
example, one where the architect forgot to put in a staircase to get between the two floors of a
house. There, the problem resulting from the error would be obvious to anyone. This is also not
like Nicholson, where the Court found that a lawyer’s failure to disclose information obtained in
a title search was a simple enough issue to be decided without an expert. Id. at 498. This, in
contrast, was an incredibly complicated divorce case, generating the longest divorce ruling the
undersigned has ever seen from any judge. Felis’s claim that it would be easy for a layperson to
determine how Judge Pearson would have ruled had Langrock acted differently on various
motions and in the final ruling is almost laughable. Without the missing expert testimony, Felis
cannot prove his malpractice claim.
5. Consumer Fraud
The consumer fraud claim is that Langrock’s billing practices were not properly
disclosed, that Attorney Carlson failed to disclose that less than 1% of his practice involved child
custody cases, and that requesting payment prior to the conclusion of the divorce was a deceptive
practice.
To prove consumer fraud, “(1) there must be a representation, practice, or omission likely
to mislead the consumer; (2) the consumer must be interpreting the message reasonably under
the circumstances; and (3) the misleading effects must be ‘material,’ that is, likely to affect the
consumer’s conduct or decision with regard to a product.” First Quality Carpets, Inc. v.
Kirschbaum, 2012 VT 41, ¶ 19, 192 Vt.
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Langrock, Sperry & Wool, LLP v. Felis, 149-2-13 Cncv (Toor, J., Mar. 9, 2015).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
VERMONT SUPERIOR COURT CHITTENDEN UNIT CIVIL DIVISION
│ LANGROCK, SPERRY & WOOL, LLP │ Plaintiff │ │ v. │ Docket No. 149-2-13 C ncv │ │ KENNETH P. FELIS │ Defendant │ │
RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND/OR MOTION IN LIMINE and PLAINTIFF’S MOTION IN LIMINE
Plaintiff Langrock, Sperry & Wool (Langrock), a law firm, brings this case to collect
about $65,000 in legal fees from Defendant Felis, a former client. In March of 2013, Defendant
filed a counterclaim asserting that (1) the parties had agreed the fees could be paid after the
divorce case was over, and that the appeal was still pending, (2) Langrock engaged in intentional
infliction of emotional distress by various acts related to collection attempts, and (3) Langrock
engaged in consumer fraud. Plaintiff previously filed two summary judgment motions, both of
which were denied in November 2013 by Judge Pearson. In December 2013, Felis amended the
counterclaim to add claims for breach of contract, promissory estoppel, breach of the covenant of
good faith, and attorney malpractice. Langrock again seeks summary judgment on all claims, or
in the alternative the exclusion of certain evidence at trial. James W. Runcie, Esq. represents
Plaintiff; Edward B. French, Jr. and Jennifer Colin, Esqs. represent Defendant. The Facts
Both the disputed and the undisputed facts in this case are lengthy and the court will not
attempt to address them all here. The court notes, however, that by merely saying “disputed’ in
response to a statement submitted by Plaintiff, Defendant has not actually put those facts in
dispute. Rule 56 requires record evidence to support any such challenge. Thus, the court treats
many such claims of dispute as undisputed. V.R.C.P. 56(c) and (e).
Conclusions of Law
1. Breach of Contract
It is undisputed that there was a contract for legal fees. Felis does not dispute that he was
billed for at least $65,000 in fees that he has not paid.1 Even if Felis proved at trial that there
was an agreement to defer payment until the divorce case was over, it is now over. The funds are
due unless Langrock breached the contract. Felis claims that the contract was breached by an
email from Attorney Carlson terminating the relationship. The email on its face does no such
thing. It asks that they discuss the issue of getting the bill paid. Felis is the one who terminated
the contract. Langrock is entitled to summary judgment on this claim.
2. Promissory Estoppel
The promise that Felis alleges is that the fees did not need to be paid until the divorce was
done. The relief sought is to have “this Court enforce the Plaintiff’s promise” to wait until after
the divorce to collect the fees. Amended Counterclaim, ¶ 58 and “wherefore clause” ¶ g. The
divorce is now done; the fees are due. There is no relief to grant. This claim is moot.
1 Langrock’s statement of material facts says the firm was owed “more than $65,000” and Felis responds first that he was billed $65,000, though he disputes “owing” it, and then that he was billed $67,546.72. Ptf’s Statement of Material Facts ¶ 28 and response thereto; Def’s Statement of Material Facts ¶ 43. The court takes it as undisputed that at least $65,000 was billed. Felis’s claim that it was not “owed” is based upon the timing of the request—now a moot point, as the divorce is done—and whether he has setoffs from his counterclaims. See Def’s Response to Ptf’s Statement of Material acts ¶ 28, and Def’s Statement of Material Facts ¶¶ 93 and 96. 2 3. Breach of the Covenant of Good Faith
This claim rests upon the contract between the parties. No separate conduct is asserted as
the basis for this claim. Thus, it cannot succeed. Ferrisburgh Realty Investors v. Schumacher,
2010 VT 6, ¶ 26, 187 Vt. 309, 322.
4. Negligence (Attorney Malpractice)
To prove a claim of malpractice by an attorney, Felis must prove that Langrock’s actions
fell below the standard of care for the type of case in question, and that Felis was harmed as a
result. Estate of Fleming v. Nicholson, 168 Vt. 495, 497 (1998). That is, he must prove that he
would have had a better result in the divorce case but for the errors. Knott v. Pratt, 158 Vt. 334,
336 (1992)(“In order to prevail in the lawyer negligence action, plaintiff had to show that she
would have prevailed in her claim against her father’s estate but for defendant’s failure.”).
As Felis concedes, an expert witness is generally required to prove the standard of care,
the breach, and the proximate cause. Id. at 497. He proffers an opinion by attorney Herbert
Ogden in support of his claim. Ex. SS to Def’s Statement of Material Facts. That opinion lists a
number of actions that Ogden believes fell below the standard of care, but states no opinion
about the harm caused thereby. Felis concedes in his response to Langrock’s statement of facts
that Ogden cannot provide evidence with regard to how Felis was harmed: that is, with regard to
proximate cause and damages. See Plaintiff’s Statement of Material Facts ¶ 22 and response
thereto. He argues, however, that this case meets the exception to the general rule: where the
“professional’s lack of care is so apparent that only common knowledge and experience are
needed to comprehend it.” Nicholson, 168 Vt. at 497-98, quoted in Defendant’s Mem. in Opp. at
32. He argues that based upon his expert’s testimony that Langrock made errors in the divorce
case, the jury can itself determine the harm.
3 The court disagrees. The sort of case that does not require expert testimony might be, for
example, one where the architect forgot to put in a staircase to get between the two floors of a
house. There, the problem resulting from the error would be obvious to anyone. This is also not
like Nicholson, where the Court found that a lawyer’s failure to disclose information obtained in
a title search was a simple enough issue to be decided without an expert. Id. at 498. This, in
contrast, was an incredibly complicated divorce case, generating the longest divorce ruling the
undersigned has ever seen from any judge. Felis’s claim that it would be easy for a layperson to
determine how Judge Pearson would have ruled had Langrock acted differently on various
motions and in the final ruling is almost laughable. Without the missing expert testimony, Felis
cannot prove his malpractice claim.
5. Consumer Fraud
The consumer fraud claim is that Langrock’s billing practices were not properly
disclosed, that Attorney Carlson failed to disclose that less than 1% of his practice involved child
custody cases, and that requesting payment prior to the conclusion of the divorce was a deceptive
practice.
To prove consumer fraud, “(1) there must be a representation, practice, or omission likely
to mislead the consumer; (2) the consumer must be interpreting the message reasonably under
the circumstances; and (3) the misleading effects must be ‘material,’ that is, likely to affect the
consumer’s conduct or decision with regard to a product.” First Quality Carpets, Inc. v.
Kirschbaum, 2012 VT 41, ¶ 19, 192 Vt. 28 (citation omitted). In addition, a plaintiff must prove
that he has been damaged by the misrepresentation or omission. Lang McLaughry Spera Real
Estate, LLC v. Hinsdale, 2011 VT 29, ¶ 32, 190 Vt. 1 (“[T]he consumer must also demonstrate
that he or she sustain[ed] damages or injury as a result of any false or fraudulent representations
or practices of the violator.”)(quotation and citation omitted); Greene v. Stevens Gas Service,
4 2004 VT 67, ¶ 13, 177 Vt. 90 (“Although we read broadly the requirement that there be injury. . .
there must be some cognizable injury caused by the alleged consumer fraud.”).
The billing issue is as follows. The written engagement agreement stated that billing
would be for “time spent to the nearest quarter of an hour.” Ex. D. to Mem. in Opp. at ¶ 2. It also
stated that the firm would “bill a minimum of one quarter of an hour for all activity, including
each telephone conversation and all correspondence and email.” Id. Felis argues that this was
misleading because it “omitted the critical fact that the billing procedure meant that Mr. Felis
would be charged for 15 minutes of time even if a task took only three minutes, for example.”
Defendant. Mem. in Opp. at 42. The court concludes that no reasonable jury could so find. The
agreement expressly states exactly that: a minimum of 15 minutes would be billed even if it was
for one call or email.
The issue about the percentage of Attorney Carlson’s cases that involved custody
disputes is as follows. Felis claims he would not have hired Carlson for that part of the divorce
case if he knew of Carlson’s allegedly limited experience. Felis did not ask Carlson about that,
however. Instead, he argues that Carlson was obligated to offer that information. The court
concludes that perhaps a reasonable consumer would want to know. However, Felis’ argument
fails on this issue because he fails to allege any damage as a result of this alleged omission. He
merely argues that he “is not required to demonstrate damage resulting from” the omission. Def.
Mem. in Opp. at 46. This is not the law, as noted above. Thus, this claim fails for that reason
alone.
The last claim of consumer fraud is that Carlson violated the parties’ agreement that
payment of fees could be deferred, by demanding payment. Even if true, this would not
constitute consumer fraud. Such fraud must be done at the front end, and be something the other
party is relying upon in entering into a contract for a product or services. Any refusal by Carlson
5 to abide by an agreement is not something Felis relied upon in hiring Carlson. Moreover, “a mere
breach of contract cannot be sufficient to show consumer fraud.” Greene, 2004 VT 67, ¶ 15.
6. Intentional Infliction of Emotional Distress
A party alleging intentional infliction of emotional distress carries “a heavy burden.”
Davis v. American Legion, Dept. of Vermont, 2014 VT 134, ¶ 20, __ Vt. __. Felis must show
that Langrock’s actions were “so outrageous in character and so extreme in degree as to go
beyond all possible bounds of decent and tolerable conduct in a civilized community and be
regarded as atrocious and utterly intolerable.” Cate v. City of Burlington, 2013 VT 64, ¶ 28, 194
Vt. 265 (quotation and citation omitted). He must also prove that the actions caused him to
suffer “distress so severe that no reasonable person could be expected to endure it.” Baldwin v.
Upper Valley Services, Inc., 162 Vt. 51, 57 (1994).
As Felis points out, the relationship between the parties can affect the analysis of this
question. However, the Restatement relied upon in the federal cases to which he cites has been
superseded. The current version merely states as follows: “Whether an actor’s conduct is extreme
and outrageous depends on the facts of each case, including the relationship of the parties,
whether the actor abused a position of authority over the other person, whether the other person
was especially vulnerable and the actor knew of the vulnerability, the motivation of the actor,
and whether the conduct was repeated or prolonged.” Restatement (Third) of Torts § 46 cmt d
(2012).
The facts on which Felis rests this claim are that Carlson sent him one email about
payment of his fees. There is nothing outrageous in that email. It says, among other things, “I
want to be your lawyer. I am not backing off this mission even a fraction of an inch. . . I am
really struggling with the idea that we would have to wait another year or more to get paid. . .
Thank you for thinking about that.” Ex. JJ to Defendant’s Statement of Material Facts. The tone
6 is gentle and the comments are reasonable. No threats are made. This is far from the sort of debt
collection action that has been found to be outrageous. See, e.g., MacDermid v. Discover
Financial Services, 488 F.3d 721 (6th Cir. 2007)(allegations that debt collector, prior to debtor’s
suicide, had made unjustified “implicit and, at times, explicit threat[s] that decedent would be
jailed if the subject debt was not quickly paid.”).
Even taking into account the close relationship between Felis and his attorney in a hotly
contested and very emotional divorce case, and Carlson’s knowledge that Felis had suffered
some psychological problems during the divorce, the facts here just do not rise to the level of
being “beyond all possible bounds of decent and tolerable conduct in a civilized community and
be regarded as atrocious and utterly intolerable.” Cate, 2013 VT 64, ¶ 28.
7. Punitive Damages
Because the court is granting judgment for Plaintiff on all substantive claims, there is no
basis for punitive damages.
8. Motions in Limine
Because the court grants Plaintiff ’s motion for summary judgment, the motions in limine
are moot.
Order
Summary judgment is granted for Langrock on its claim for breach of contract, and on all
of Felis’s counterclaims. The motions in limine are therefore moot. Langrock is directed to
submit a proposed judgment, to which Felis shall have five days to object pursuant to V.R.C.P.
58(d).
Dated at Burlington this 9th day of March, 2015.
_____________________________ Helen M. Toor Superior Court Judge
7 8