The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2
Defendants Lawrence A. Fox ("Fox"), Lenre, Lapidus & Franquinha,
P.C., ("LLF") and Legal Vision, Inc. ("Vision") (collectively,
"Defendants") and have moved for summary judgment, pursuant to
Fed.R.Civ.P. 56, and have moved to strike plaintiff Edward C. King's
("King") jury trial request. King, in turn, has cross moved for
summary judgment, pursuant to Fed.R.Civ.P. 56, and for an order directing
Fox to disgorge monies and fees. For the reasons set forth below, Fox's
summary judgment motion is granted, and King's motion is denied.
King is domiciled in and a citizen of the State of Tennessee and a
former member of the rock band Lynyrd Skynyrd.
Fox is a New York resident a lawyer retained by King to obtain certain
royalties. LLF is a New York law firm. Vision is incorporated under the
laws of and transacting business in the State of New York.
King commenced this action against Defendants on June 4, 1997, filing a
complaint alleging a breach of fiduciary duty,
unjust enrichment, undue influence, conversion, and a violation of New
York Judiciary Law § 487. Defendant Fox answered and counterclaimed
for an accounting of monies owed.
On May 8, 1998, Defendants filed a summary judgment motion, based upon
King's violation of the statute of limitations for bringing an action in
1997 predicated upon a retainer agreement executed in 1976 and a
representation that ended in 1990. Summary judgment was granted and
King's action was dismissed with prejudice. See King v. Fox, No. 97 Civ.
4134, 1999 U.S. Dist. LEXIS 2795 (Mar. 9, 1999). Following discovery,
Fox's counterclaim proceeded to jury trial before the Honorable
Magistrate Judge James C. Francis, IV, and the counterclaims were
Meanwhile, King appealed the summary judgment decision, and the Second
Circuit concluded that "King has raised a genuine issue of material fact
as to whether Fox continued to represent him, thus tolling the statute of
limitations on King's claim." King v. Fox, 28 Fed. Appx. 95, 99 (2d Cir.
2002) *fn1 The Second Circuit thus vacated the summary judgment
order and remanded for further proceedings. Id. Upon remand, the parties
conducted further discovery, including additional depositions.
The instant motions were heard and marked fully submitted on October 8,
The facts are set forth based upon the Local Rule 56.1 statements of
the parties and supporting declarations.
From 1972 to 1975, King was a member of the rock band Lynyrd Skynyrd
("the Band"). King left the Band in 1975.
In 1974, King and the Band entered into various written agreements with
MCA Records, Inc. ("MCA") providing for the payment of royalties. By
written agreement, dated November 26, 1976, King retained attorney Fox to
pursue King's rights to royalties from MCA stemming from his association
with the Band. This agreement set out that:
[The] fee for services in this matter will be a
contingency fee, based upon any money recovered
from the defendants. Our fee for representing you
will be 1/3 of the recovery, whether by way of
settlement, trial, judgment, or other method.
Fox represented King's interests in connection with the pursuit of
royalties from MCA, including the commencement of two lawsuits in New
York, one in 1976 and one in 1982, against MCA which were respectively
settled in 1978 and 1989. The terms of the
settlement of the 1976 lawsuit required MCA to pay King a sum of
money, and to make payment of future royalties and provide royalty
statements. One third of the settlement amount was paid to Fox's then law
firm, and the balance was remitted to King pursuant to their agreement.
Thereafter, royalty payments from MCA were remitted to Fox, who deposited
them into his firm's escrow account, remitting two thirds to King
and paying one third to his firm. This practice continued
uninterrupted from 1979 until 1995.*fn2
In the late 1970's, John K. Groon ("Groon"), an attorney representing
King, reviewed both the settlement of the first lawsuit against MCA and
the scope of the one third fee agreement between Fox and King. On
October 18, 1978, Groon informed Fox that he advised King that Fox's
reading of the retainer was correct. On October 25, 1978, Groon sent Fox
the settlement documents which were executed by King, and neither Groon
nor King raised any further question with respect to the scope of the
Beginning in April 1995, King has received royalty payments relating to
the Band directly from MCA, and has not remitted to Fox a one
On June 4, 1997, King filed suit against Fox for taking a one
third share of King's royalties, alleging claims for breach of fiduciary
duty, unjust enrichment, undue influence, conversion, and a violation of
New York Judiciary Law § 487.
I. Motion for Summary Judgment
A. The Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c); see generally 6 James Wm. Moore, et al.,
Moore's Federal Practice ¶ 56.15 (2d ed. 1983). The court will not
try issues of fact on a motion for summary judgment, but, rather, will
determine "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one sided that
one party must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
The moving party has the burden of showing that there are no material
facts in dispute, and the court must resolve all ambiguities and draw all
reasonable inferences in favor of the party opposing the motion.
Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex
Corp. v. Catrett. 477 U.S. 317 (1986)). Thus, "[s]ummary judgment may be
granted if, upon
reviewing the evidence in the light most favorable to the non
movant, the court determines that there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law."
Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under
the governing law," and a dispute about a genuine issue of material fact
occurs if the evidence is such that "a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477 U.S. ...