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Feick v. Fleener

decided: June 22, 1981.

JANE BORDA FEICK, JOSEPH L. BORDA, JR., ANTHONY BORDA, CHARLES BORDA, JR., AND ANN BORDA MARIN, PLAINTIFFS-APPELLANT,
v.
CHARLES J. FLEENER AND SALLY FLEENER CAVE, DEFENDANTS-APPELLEES .



Appeal from an order of the District Court for the Southern District of New York (Whitman Knapp, Judge) dated July 31, 1979 dismissing the first cause of action alleged in the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and from an order of summary judgment dated November 18, 1980 dismissing the second and third causes of action alleged in the complaint under Rule 56, Federal Rules of Civil Procedure. Affirmed.

Before Waterman, and Mansfield, Circuit Judges, and Newman, Judge.*fn*

Author: Newman

We are faced with a family dispute wherein appellants seek recovery from appellees of some fifty thousand dollars representing a portion of the legal fees paid by appellants for services rendered in connection with a decedent's estate which allegedly benefited appellees.*fn1 Appellants, who are brothers and sisters, also are cousins of appellees; appellees are brother and sister.

This is an appeal from an order of the District Court, per Judge Whitman Knapp, dated July 31, 1979, dismissing the first cause of action in the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and from his order dated November 18, 1980 granting summary judgment, and dismissing the second and third causes of action in the complaint under Rule 56, F.R.Civ.P.*fn2 We affirm.

I.

The material facts, although a maze of complexities, are not in dispute.

Leopold Borda ("Leopold") died testate on January 15, 1976. His will bequeathed the "net proceeds" of certain property located in Puerto Rico, known as "Esperanza", to two nephews, Joseph L. Borda, Sr. ("Joseph, Sr.") and Charles Borda, Sr. ("Charles, Sr."), and to his niece Marguerite Borda Fleener ("Marguerite"), or their issue. Joseph, Sr. predeceased Leopold leaving five surviving children, appellants herein: Joseph Borda, Jr. ("Joseph, Jr."), Anthony Borda, Charles A. Borda, Jane Borda Feick and Ann Borda Marin. Leopold's niece, Marguerite, likewise predeceased Leopold, survived by two children, the appellees: Charles J. Fleener ("Fleener") and Sally Fleener Cave. Charles, Sr. survived Leopold, and is still alive, but is not a party to this action.

Although Leopold's will named his nephews and niece as legatees, Susan Rogers ("Rogers") claimed to be Leopold's spouse, and Guillermina Martinez ("Guillermina") purported to be Leopold's daughter. Rogers and Guillermina both asserted claims against Leopold's estate as superior to the interests of the designated beneficiaries.

It further appears that on January 27, 1969 Leopold was adjudicated an incompetent, and Joseph, Sr. and Rogers were appointed co-committees of his person and estate. Thereafter, Charles, Sr. commenced an action in the New York Supreme Court, Westchester County to annul Leopold's marriage to Rogers on the basis of Leopold's incompetence at the time of the marriage ceremony. The marriage was annulled by the State Supreme Court on July 11, 1972 (affirmed on appeal), thus eliminating Rogers' claim to any portion of Leopold's estate. Further, a settlement was negotiated with the alleged daughter, Guillermina, thus disposing of her claim against Leopold's estate.

In January 1971, Joseph, Sr. and Charles, Sr. executed and delivered to the law firm of Jaffe Cohen, Crystal & Mintz ("Jaffe Cohen") a document dated January 29, 1971 wherein Joseph, Sr. and Charles, Sr. agreed:

to retain the services of (Jaffe Cohen) in representing us in an Annulment-Divorce proceeding of Leopold Borda against Susan Borda, and all matters related thereto.

We agree jointly and severally to pay you the following:

3. Twenty-Five (25%) percent of all monies inherited by us and/or any other nieces, nephews or descendants of nieces or nephews of Leopold Borda from the Estate of Leopold Borda will be paid immediately to you upon payment by the Estate.

In addition to bearing the signatures of Joseph, Sr. and Charles, Sr. binding them "individually, jointly and severally", the January retainer agreement was signed by Joseph, Sr. as "Attorney-in-fact" for appellees. At the time of executing the retainer agreement with Jaffe Cohen, Joseph Sr. possessed separate written powers of attorney dated June 5, 1970 from each of the appellees appointing Joseph, Sr. as their attorney

to act with regard to my one-eighteenth (1/18) undivided interest in the plantation in Manati, Puerto Rico, known as "Esperanza", including, without limitation, all real property interests therein, all buildings and other improvements erected thereon and all appurtenances thereto. (Emphasis added.)

Joseph, Sr. died in May 1971 (terminating his commission), and shortly thereafter Rogers was removed as a committee of Leopold's person and estate. Thereupon, Frank Connelly, Esq. was appointed by the Supreme Court as sole committee and guardian ad litem to represent Leopold in the annulment proceeding. Connelly then intervened in the annulment action.

Subsequently on September 28, 1971, Charles Sr. and each of the appellants signed and delivered to Jaffe Cohen a letter reaffirming the January 29, 1971 retainer agreement. The September letter specifically stated that Fleener had disclaimed authorization for any representation of his interest by Jaffe Cohen:

On May 19, 1971 our agreement with you was confirmed by Charles Borda and by Joseph L. Borda, Jr. following the death of Joseph L. Borda, Sr. on May 5, 1971. Joseph L. Borda, Jr. was acting on behalf of all of the heirs of Joseph L. Borda, Sr. and Charles Borda was acting both in his individual capacity and as Executor of the Estate of his brother, Joseph L. Borda. At that time, we sought to obtain confirmation from Charles Joseph Fleener of his commitment to proceed with the various steps which your law firm had contemplated would be forthcoming. In the interim you have met with Mr. Fleener and with his attorney Michael Curtin, and as a result of your meeting, he has promised that he would advise us as to his position with regard to further litigation. Mr. Fleener has now taken the position that he does not want verbal (sic) litigation brought on his behalf. Regardless of the position taken by Charles Joseph Fleener, we wish to reconfirm our commitments as set forth in the letter of January 29, 1971 and as confirmed on May 19, 1971. (Emphasis added.)

The September letter went on to state:

We understand that your activities thus far have resulted in your law firm having already earned 25% of whatever inheritance we may receive from the Estate of Leopold Borda. Thus, in the event that at any point we should direct you not to continue with respect to any activities which you are performing on our behalf, nonetheless you will have earned the 25% deferred compensation by the activities which you have performed to date.

Significantly, the September letter was not signed by either of the appellees.

As mentioned, Leopold's marriage to Rogers was annulled by the Supreme Court of New York in July 1972. The State Supreme Court awarded both Jaffe Cohen and Connelly substantial fees for their ...


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