Kaufman Payton & Chapa, P.C. v. Bilanzich

Filing 38

ORDER Granting Plaintiff's Motion for Summary Judgment and Finding Defendant Liable to Plaintiff 33 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KAUFMAN PAYTON & CHAPA, P.C.,
Case No. 11-15563
Plaintiff,
Honorable Denise Page Hood
v.
MICHAEL BILANZICH,
Defendant.
________________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND FINDING DEFENDANT LIABLE TO PLAINTIFF
I.

BACKGROUND
On December 20, 2011, Plaintiff Kaufman, Payton & Chapa, PC (“KP&C”)

filed the instant action against Defendant Michael Bilanzich (“Bilanzich”). The
Complaint alleges a one-count breach of contract agreement against Bilanzich.
Pursuant to the Retainer Agreement signed by Bilanzich on April 7, 2011, KP&C was
employed to represent him in a suit against Park West Galleries, Inc. for the sale of
inauthentic and misrepresented artwork Bilanzich purchased for more than
$1,000,000.00. A lawsuit was filed with the Oakland County Circuit Court, which
was withdrawn at the request of Bilanzich. The Complaint alleges that during an
unknown date, Bilanzich discussed and came to an agreement with Park West
Galleries to settle the matter, without KP&C’s knowledge. KP&C asserts it is entitled

to 33 1/3% of any settlement Bilanzich reached with Park West Galleries pursuant to
the Retainer Agreement between KP&C and Bilanzich.
Bilanzich filed an Answer to the Complaint, along with a Counterclaim on April
27, 2012. The Counterclaim was dismissed pursuant to a November 5, 2013 Order
entered by the Court on Plaintiff’s Motion to Dismiss the Counterclaim. (Doc. No.
26) This matter is before the Court on KP&C’s Motion for Summary Judgment on the
claim in its Complaint against Bilanzich. A response and reply briefs have been filed.
II.

ANALYSIS
A.

Standard of Review

Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Although the Court must view the motion in the light
most favorable to the nonmoving party, where “the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is
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some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A
court must look to the substantive law to identify which facts are material. Anderson,
477 U.S. at 248.
Federal courts hold the pro se complaint to a “less stringent standard” than
those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972). A pro se litigant
“must conduct enough investigation to draft pleadings that meet the requirements of
the federal rules.” Burnett v. Grattan, 468 U.S. 42, 50 (1984).
B.

Breach of Contract

KP&C argues that it is entitled to summary judgment against Bilanzich since
there is no genuine dispute as to any material fact. KP&C asserts that in both his
Answer to the Complaint and answers to Requests for Admissions, Bilanzich admitted
all the necessary allegations made by Plaintiff. Bilanzich in his Answer admitted that
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he retained KP&C pursuant to a written retainer agreement and that under the
agreement, Bilanzich was to receive 33 1/3% of any sums recovered on his behalf,
after deducting any cost in the matter. (Motion, Ex. 10) KP&C asserts it served
Bilanzich Requests for Admissions, along with Interrogatories on August 12, 2013.
KP&C claims that Bilanzich’s failure to submit a response means Bilanzich admitted
the requests made by KP&C under Rule 36(a)(3) of the Rules of Civil Procedure.
When KP&C sought concurrence of Bilanzich as to the instant motion for summary
judgment on October 4, 2013, Bilanzich thereafter emailed to KP&C his discovery
responses, indicating that he had mailed the responses to KP&C on September 12,
2013. (Motion, Ex. 12) Regardless of when KP&C received the discovery responses,
KP&C states that Bilanzich admitted signing the retainer agreement, that he agreed
to pay a retainer fee of $1,500 and that he admitted that Bilanzich had settled the
dispute without informing KP&C. (Motion, Ex. 13)
In his response to the Motion for Summary Judgment, Bilanzich states that at
no time was he negotiating with Park West for his own benefit and that he received
no payment from Park West for his own benefit. (Resp./Obj. pp. 1-2) He argues that
based on a Postnuptial Agreement and Decree of Divorce, he was not entitled to the
assets at issue. (Resp./Obj. pp. 1-2)
A plaintiff must establish the following to state a breach of contract claim: 1)
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that the parties entered into a valid enforceable contract that included the terms and
conditions claimed by plaintiff; 2) that the defendant breached the contract; and, 3)
that the defendant’s breach caused a loss to the plaintiff. Platsis v. E.F. Hutton & Co.,
642 F.Supp. 1277 (W.D. Mich. 1986); Pittsburgh Tube Co. v. Tri-Bend, Inc., 185
Mich. App. 581 (1990). In Michigan, the paramount goal when interpreting a contract
is to give effect to the intent of the contracting parties. Old Kent Bank v. Sobczak, 243
Mich. App. 57, 63-64 (2000). The court is to read the agreement as a whole and
attempt to apply the plain language of the contract itself. Id. If the intent is clear from
the language of the contract itself, there is no place for further construction or
interpretation of the agreement. Farm Bureau Mut. Ins. Co. v. Nikkel, 460 Mich. 558,
566 (1999). A contract provision that is clear and unambiguous must be “taken and
understood in [its] plain, ordinary, and popular sense.” Mich. Mut. Ins. Co. v. Dowell,
204 Mich. App. 81 (1994). Unambiguous contract provisions are not subject to
interpretation and must be enforced as written. Id.
KP&C has met its burden on its breach of contract claim. Bilanzich admits to
entering into the retainer agreement with KP&C. The retainer agreement shows
Bilanzich signed the agreement on April 7, 2011, with a witness to the signature.
Bilanzich admits in his response to the motion that he, without knowledge of KP&C,
negotiated a settlement with Park West. Bilanzich agreed “not to enter into any
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settlement unless my attorneys are present and are paid in accordance with this
agreement.” (Motion, Ex. 1) By failing to notify KP&C as to the settlement with Park
West, KP&C has shown that it did not receive the fee KP&C was entitled to under the
retainer agreement. Bilanzich’s argument that he did not negotiate the settlement for
himself and that he received no funds from the settlement does not create a genuine
issue of fact that he negotiated a settlement with Park West without KP&C’s
knowledge and that KP&C was retained to do such and receive a fee for its services.
KP&C has met its burden in showing that Bilanzich breached his retainer agreement
with KP&C.
C.

Damages

As to damages, KP&C submitted sufficient evidence to support its claim that
it is entitled to a 33 1/3% attorney fee in the amount of $82,454.29. KP&C submitted
documents to show that the total sum settled between Bilanzich and Park West was
in the amount of $247,362.88. Park West sent a correspondence to Bilanzich and his
wife indicating that towards the settlement, Park West would pay Bilanzich
$180,050.00. (Motion, Ex. 16) Bilanzich indicated to Park West that payment should
be made to his wife. In addition to this amount, Bilanzich received bid credits from
Park West and KP&C argues that this amount should also be credited to KP&C
towards its fee. Park West agreed to give Bilanzich a bid credit for $13,503.75 to
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purchase back a Salvadore Dali work of art and a second Dali piece with bid credit of
$53,809.13. (Motion, Ex. 15)
Bilanzich responds that he did not receive any of these funds from Park West.
Bilanzich claims the funds were given to his wife pursuant to a divorce decree.
However, no matter who received the payment, there is no dispute that Bilanzich
agreed to settle the matter with Park West in the amounts noted. KP&C has carried
its burden that it is entitled to damages in the amount of $82,454.29 (33 1/3% of
$247,362.88).
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (#33,

1/21/2014) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff is entitled to damages in the amount
of $82,454.29 from Defendant. A judgment will be entered in favor of Plaintiff and
against Defendant.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: April 30, 2014

I hereby certify that a copy of the foregoing document was served upon counsel of
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record on April 30, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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