Free Other Notice - District Court of Arizona - Arizona

Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736) David A. Welling (PRO HAC VICE) (OSBN 0075934) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SHIMKO & PISCITELLI, et al., Plaintiffs, v. PAUL WOODCOCK, et al., Defendants.

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Case No. CV-04-00078-FJM Judge Frederick J. Martone PLAINTIFFS' POST-TRIAL MEMORANDUM ON THE ISSUE ON REMAND: RE-DETERMINATION OF DAMAGES UNDER QUANTUM MERUIT / UNJUST ENRICHMENT

NOW COME Plaintiffs, and pursuant to this Court's order, hereby submit their post-trial memorandum limited exclusively to the issue on remand, which is the re-determination of damages under quantum meruit / unjust enrichment. I. Introduction / Procedural History The Plaintiff, Timothy A. Shimko, is a resident of the State of Ohio and is a practicing attorney in that state and at all times relevant maintained his sole place of business in the State of Ohio under the name Shimko & Piscitelli. Dr. Guenther and all other Defendants named in this action are residents of Arizona.

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The Plaintiff was asked by the Defendant, Dr. Guenther, and by Dr. Guenther's other partners in their CORF venture to represent them and their wives, personally, and several of their business interests in a number of lawsuits each expected to be filed against them in various jurisdictions across the country. The Plaintiff agreed to and did represent Dr. Guenther,

personally, and his wife, his partners, and their partnerships in approximately forty (40) separate fraud lawsuits that were filed across the country, although the vast majority of the cases were filed in Arizona. The Plaintiff immediately associated with local counsel and proceeded to represent Dr. Guenther and his partners and their business interests. However, in April of 2003, the Plaintiff pressed for payment of his attorney's fees, which at that time were delinquent in the amount of approximately $359,668. At that time, the Plaintiff's services were terminated by Dr. Guenther and his partners without any provision being made for paying the past due fees, and the Plaintiff shortly thereafter brought this action to collect the outstanding attorney's fees. The Plaintiff's case was initially filed in the U.S. District Court for the Northern District of Ohio under Case No. 1:03CV0794. When initially filed, the Plaintiff named not only Dr. Guenther and his wife as Defendants, but also Dr. and Mrs. Woodcock, Mr. and Mrs. Ross, and Mr. and Mrs. Goldfarb. On or about September 29, 2003, venue was transferred to the U.S. District Court of Arizona in Tucson under Case No. CIV-03-506-TUC-ACM. Subsequently, the case was moved to the District Court sitting in Phoenix, under Case No. 04-CV-00078 FJM (the instant case number). On October 1, 2004, this Court granted summary judgment in favor of Defendants Goldfarb and Ross on all of the Plaintiff's claims. The Court denied the motions for summary judgment filed by the Woodcocks and Guenthers. The Plaintiff appealed the granting of

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summary judgment to Defendants Goldfarb and Ross. The Ninth Circuit reversed those rulings and has remanded the case for trial. Trial is now set to occur on August 26, 2008 in this Court as against Goldfarb, Ross, and Woodcock. (The Plaintiff's claims against Woodcock were re-filed after he was dismissed for filing bankruptcy, and that case has now been consolidated with this case.) In this case, after Defendants Goldfarb and Ross were dismissed on summary judgment, and Defendant Woodcock was dismissed after filing for bankruptcy, the case proceeded to a full bench trial against Dr. Guenther on May 17, 2005. On May 24, 2005, this Court issued its findings of fact and conclusions of law and entered judgment for the Plaintiff in the amount of $359,668. Dr. Guenther appealed to the Ninth Circuit. The Ninth Circuit reversed in part and remanded this case for a re-determination of damages. When this Court found for the Plaintiff this Court awarded damages on the basis that Dr. Guenther had acted as a general partner and was thus liable for the debts of the partnership. The Ninth Circuit found this erroneous. Importantly, however, is the fact that in this Court's findings of fact and conclusions of law, this Court stated that it would also have awarded the Plaintiff damages against Dr. Guenther under quantum meruit / unjust enrichment. And, since the Ninth Circuit held that Dr. Guenther cannot be liable as a general partner, the sole question now on remand is a re-determination of damages under quantum meruit / unjust enrichment, which this Court already stated it would award. This Court's May 24, 2004 order, in pertinent part, stated: We find in favor of Shimko and against Guenther in contract because Guenther agreed to be represented by Shimko in the scores of actions filed against him. These findings moot the alternative claim for unjust enrichment. If they had not, we would have found in favor of Shimko and against Guenther for unjust enrichment, since he benefited from the legal services and did not pay for them.

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The question of damages raises several issues. Shimko would be entitled to some lesser amount in contract, since the representation of Guenther was only a part of the scope of the services rendered. Moreover, if we were to look simply at unjust enrichment, we would reduce damages by an allocation of work simply to Guenther, and we would reduce the fee from the contracted amount of $350.00 an hour to a lesser, more reasonable amount. (See the May 24, 2005 order attached as "Exhibit 1.") II. Statement of Facts The Plaintiff, Timothy A. Shimko, has been member in good standing of the bar of the State of Ohio since 1976. For his entire career, he has concentrated his practice in the field of civil litigation. Shimko has extensive civil trial experience. He has tried well over a hundred jury trials to completion. In each of the last four years, Plaintiff Shimko has been selected by his peers in the legal profession as one of Northeast Ohio's best lawyers, and last year was selected by his peers as one of Ohio's best lawyers. Shimko is also a Barrister in the Anthony J. Celebreeze Chapter of the American Inns of Court. Defendants Milton Guenther, D.C. and Kathy Guenther, were and are residents of Arizona. Milton Guenther, D.C. (alternatively referred to in the documents sometimes as

"Mick" Guenther) was at all times relevant an owner, officer and executive of CORF Management Services, LP ("CMS") and CORF Licensing Services, LP ("CLS"). Dr. Guenther, along with several others, through a series of limited partnerships, is one of the owners and officers of CMS and CLS. Dr. Guenther and his partners, at all times relevant, appeared directly involved in the day to day activities of CMS and CLS. (See the Trial Transcript (hereinafter "TR") at Pgs. 22-23, attached as "Exhibit 2.") Under a consulting agreement, the customers of CLS paid approximately $125,000 to CLS to advise and assist the customer in establishing a Medicare approved Comprehensive

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Outpatient Rehabilitation Facility (CORF). (TR 14-15)

Demand for CLS' services was

generated by advertisements in publications with national distribution and over the internet. In the newspapers and on its website, CLS informed the investing public what a CORF was and what awaited the knowledgeable investor that would open up his or her own CORF. Potential investors were given an e-mail address and a telephone number, by which they could communicate with CLS' employees. (TR 15) Potential investors or customers would generally speak to David Goldfarb, who would expand upon the benefits of owning and operating a CORF and answer any questions the customer had. If the customer remained interested, he or she would be invited to a daylong seminar at the Troon Country Club, at which they would be addressed by Dr. Guenther, Dr. Woodcock, David Goldfarb and Richard Ross. These seminars took place approximately twice a month from 1999 to the middle of 2002, and were attended usually by six (6) to twelve (12) customers. From 1999 up until the end of 2001, Dr. Guenther attended these seminars, and gave talks to the groups on the services his people provided. (TR 23) Dr. Woodcock, Richard Ross, and David Goldfarb would also address the group on their own individual topics. Before the seminar, during lunch, and after the seminar, Dr. Guenther spoke and met with the potential customers and answered their questions. (TR 15, 18) If, after the seminar, the potential customers were still interested, he or she would receive the standard agreements. There were two sets of agreements; one for CLS and one for CMS. The companies CLS and CMS were labeled separate, but in essence appeared as the same company. They were operated out of the same offices, shared the same employees and were financed out of the same funds. (TR 21-22)

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For the $125,000 "Service Fee" paid to CLS by the customer, CLS agents and employees would assist the customer in locating a facility to rent that would not only pass Medicare regulations and requirements, but that would also be advantageous for referral business from local physicians. CLS, through its agents, would also assist the customer in designing the facility and would assist in the hiring of a Medical Director and a competent and qualified staff, and in the purchase of rehabilitation equipment, all in accordance with Medicare guidelines. (TR 2728) Once the facility had been located, designed, built, equipped, and staffed, CLS would assist and advise the customer through the Medicare application and approval process right up through the facility inspection and certification. Once the facility was fully licensed and started, CLS' obligations under the Service Agreement terminated. The other set of Agreements that the customer signed was the CMS Management Services Contract. This was an optional agreement. Once licensed, the customer was under no obligation to continue to use CMS as its management company to assist the owner in the management and operations of the facility to keep it Medicare compliant. CMS would provide these management services in exchange for a percentage of the CORF facility's accounts receivable. The business of CLS grew rapidly from 1999 through the first part of 2002. Throughout most of 2000 and 2001, CLS was executing service agreements with its customers at a minimum cost of $125,000 each at the rate of 10 to 20 contracts per month. However, complaints from their earliest customers began to swell in the summer of 2001. The complaining customers alleged that the patients that were promised to arrive and fill the facilities to capacity did not do so in the numbers that the CLS customers alleged had been represented to them. With the number of complaints on the rise, in November of 2001, Plaintiff Shimko was asked by Paul

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Woodcock to meet with him in Phoenix, Arizona to discuss representing him and his partners in this venture in which they were involved. (TR 18, 165-166) Dr. Guenther and Dr. Woodcock had previously retained Shimko from 1991 to 1996 to represent them in their personal capacities in other litigation matters pending in Ohio and in Arizona unrelated to this matter. During that five-year period of time, Plaintiff Shimko represented Dr. Guenther individually in claims arising out of a business that he and Dr. Woodcock owned with two other partners. (TR 13, 162, 195) Plaintiff Shimko met with Dr. Guenther, Dr. Woodcock, David Goldfarb, and Richard Ross who explained the nature of the business that they were in. At this meeting, it was explained that the ownership of CLS and CMS on paper was structured in layers of limited partnerships, but that the companies were owned and operated by Drs. Guenther and Woodcock and Messrs. Ross and Goldfarb as equal partners. Each had an equal say and each was paid an equal share of the profits. Each received a draw from the companies. (TR 83-84) After explaining the nature of the operations and the extent of each of their individual involvements in the operations of the business to him, Shimko was asked to advise Dr. Guenther and the other owners on the extent of their individual and personal exposure, if any, beyond the protection offered to them by the limited partnership structure under which they owned and operated CLS and CMS. (TR 20-21) At this time, disenchanted customers were making

complaints alleging that Dr. Guenther and each of his partners had deliberately and intentionally misrepresented the true potential of CORFs by fabricating success stories to induce new investors, and by paying previous customers substantial sums of money to say good things about CORFs and CLS. Shimko advised Guenther and his partners that if such allegations were proven

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against each of the individual owners, then no corporate or limited partnership structure would shield them from personal liability. (TR 30-31, 33, 65-69) At a meeting in November 2001, attended by Dr. Guenther, Dr. Woodcock, Dick Ross, and David Goldfarb, Plaintiff Shimko was asked to represent each of them, and their wives, personally in litigation they anticipated would soon be filed across the country. (TR 61-62) The principal issue with which the CORF owners and officers were concerned with was potential personal liability. At that dinner meeting that occurred in Scottsdale, Arizona between Plaintiff Shimko and Dr. Guenther, attended also by Messrs. Ross and Goldfarb and Dr. Woodcock, Plaintiff Shimko and Dr. Guenther agreed that Shimko would represent Dr. Guenther and his wife, personally, along with the other partners and their wives, personally, in disputes that might arise nationwide. (TR 61-62, 65-66) For purposes of convenience, Plaintiff Shimko was requested to and did agree to submit billings for services rendered to Dr. Guenther and to all of his partners to CMS, which was a limited partnership owned principally by Dr. Guenther and his partners. (TR 76-77) When Plaintiff Shimko was advised to submit his monthly bill to CLS, he advised each of the gentlemen that though he would submit his bill to CLS, he was looking to payment from each of them. At that meeting, Dr. Guenther and his three other partners, agreed to be personally responsible for the fees and expenses incurred in the preparation and disposition of resolving claims. (TR 73-75) At the time these representations were made, Dr. Guenther and his partners informed Plaintiff Shimko that they were all equal partners in the CLS/CMS business, even though the ownership was structured through several layers of limited partnerships. (TR 73-74) Dr. Guenther held a number of management positions in CLS and CMS from 1999 to 2003. He was prominent in the group's efforts to market the services offered by CLS and CMS,

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speaking at bi-weekly seminars. Throughout this time, he also traveled extensively and directly assisted customers in finding locations for their facilities and in locating medical directors and staffs, and Dr. Guenther assisted CORF customers with matters of operating a CORF, such as the proper layout and design of a CORF facility. Towards the end of 2002 and in 2003, his day to day efforts for CLS and CMS were focused more on locating and developing customers for another type of outpatient facility that the partnership had decided to market. (TR 22-23) In November of 2001, Plaintiff Shimko and his firm began to field a growing number of lawsuits from customers of CMS and CLS. Many of the claims contained allegations of fraud and deceit directly attributable to specific representations that had allegedly been made by Dr. Guenther, Dr. Woodcock, Richard Ross and David Goldfarb, which the customers were alleging had not turned out to be true or accurate. (TR 20-21) Upon being retained by Dr. Guenther and his partners, Shimko & Piscitelli immediately associated itself with local counsel in Arizona and in the other states where litigation against Dr. Guenther and his partners was commencing. In Arizona, Plaintiff Shimko initially associated with Arizona attorney, Mr. Cameron Artigue, of the Phoenix firm of Gammage & Burnham. Later, in March of 2003, when Dr. Guenther and his partners stopped paying Mr. Artigue's invoices, the Arizona law firm of Boates & Welty was substituted in to work with Plaintiff Shimko, first as local counsel and then as replacement counsel for Dr. Guenther and his partners on all matters pending in Arizona. (TR 42) From November 2001 through April 2002, Plaintiff Shimko and his firm were able to negotiate settlements short of litigation in claims against Dr. Guenther and his partners and their companies. Before each of these cases was settled, the matter was reviewed personally by Dr. Guenther and all of his partners. No settlement was paid without Dr. Guenther having reviewed

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it and agreed to it. Throughout this period, and throughout the period of litigation that followed, Dr. Guenther was individually involved in the management and direction of the defense of the litigation. (TR 22) However, by April 2002, CLS' customers began to file lawsuits in increasing numbers. In fact, Dr. Guenther and his wife along with David Goldfarb, Richard Ross, and Paul Woodcock and their wives were ultimately sued in at least forty (40) separate cases throughout the United States, seeking tens of millions of dollars in damages; however, a large majority of the lawsuits were filed in Arizona. Although various other causes of action were pled in each of these lawsuits, the principal claims against Dr. Guenther and his partners alleged fraud and RICO violations. Judgments based on such allegations are generally not dischargeable in bankruptcy. (11 U.S.C. § 523) Plaintiff Shimko and his firm undertook to represent Dr. Guenther and his partners in all of these actions. (TR 20-21) The work done by Plaintiff Shimko's law firm was documented in detail in invoices sent to Dr. Guenther and his partners at CMS. In the invoices, the work that was done was detailed, the date on which the work was done was set forth, and the amount of time spent doing the work and the individual doing the work and that person's hourly rate were clearly set forth. From October 2001 until October 2002, Plaintiff Shimko's firm was paid on the invoices submitted to Dr. Guenther and his partners. (TR 49) The invoices reveal that Shimko and his staff prepared various pleadings and motions on behalf of Dr. Guenther, his wife, and for his partners and their wives in each of the various lawsuits filed against Dr. Guenther and his partners. Confirmatory of the individual nature of the representation, Shimko & Piscitelli were directed to research and advise Dr. Guenther and his partners on issues that had nothing to do with the business of CMS and CLS. Shimko's invoices just for the months of November and

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December 2001 and January 2002 show that in these three months alone, 115 hours of the firm's time was devoted to researching and advising Dr. Guenther and his partners on personal matters unrelated to CLS or CMS. Plaintiff Shimko's firm was directed to research and to generally advise Dr. Guenther and his partners on the various laws of fraudulent conveyances and on the viability of various international trusts and offshore investments. (TR 34, 37) The corporate defendants CMS and CLS had few assets of any value and Plaintiff Shimko's representation of CMS and CLS was merely incidental to the representation of the individual Defendants, including Dr. Guenther. From November 2001 until October 2002, Plaintiff Shimko's invoices were paid. invoices went unpaid. (TR 92) In January 2003, Plaintiff Shimko contacted Dr. Guenther and his partners and informed them that due to non-payment of the firm's fees, the firm could no longer represent them and that the firm would be withdrawing as counsel for Dr. Guenther, his partners and for CMS and CLS. In late January 2003, as the firm of Gammage & Burnham was threatening to withdraw for non-payment, Dr. Guenther and his partners asked Plaintiff Shimko to stay on the cases until they could locate new counsel, inducing Plaintiff Shimko to do so with promises of imminent payment. (TR 51-52) In March of 2003, Dr. Guenther and his partners located another Phoenix firm; to-wit, Boates & Welty, to act as local counsel on all of the cases filed in Arizona. Finally, in April of 2003, when Shimko pressed Dr. Guenther and his partners for payment on his firm's account, Dr. Guenther and his partners terminated the services of Shimko and his firm. (TR 52) Shortly thereafter, the Plaintiff commenced this action. Commencing in October 2002, Plaintiff Shimko's

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III.

Law & Analysis a. Quantum Meruit / Unjust Enrichment The Plaintiff's Fourth Cause of Action alleged that the Plaintiff performed services for

Dr. Guenther and his partners and that when those services were rendered, the Plaintiff reasonably expected Dr. Guenther and his partners to pay for those services. Dr. Guenther and his partners received the benefit of those services and have been unjustly enriched in the amount of $359,668 plus interest. It is the well established law of Arizona that in order to prevail upon a theory of unjust enrichment, a plaintiff must establish that, (1) plaintiff conferred a benefit upon the defendant; (2) defendant's benefit is at plaintiff's expense; and (3) it would be unjust to allow the defendant to keep the benefit. Murdock-Bryant Const., Inc. v. Pearson, 146 Ariz. 48, 53, 703 P.2d 1197, 1202 (1985); Pyeatte v. Pyeatte, 135 Ariz. 346, 352, 661 P.2d 196, 202 (App.1982). While the aforementioned elements are necessary to maintain a cause of action for unjust enrichment, they are not always sufficient. For instance, courts have repeatedly held that the existence of a contract specifically governing the rights and obligations of each party precludes recovery for unjust enrichment. Brooks v. Valley Nat'l Bank, 113 Ariz. 169, 548 P.2d 1166 (1976); Johnson v. American Nat'l Ins. Co., 126 Ariz. 219, 223, 613 P.2d 1275, 1279 (App.1980). That the doctrine of unjust enrichment has no application to express contractual situations, quite obviously, results from the fact that unjust enrichment is a form of restitutionary relief available upon either "implied in fact" contract or quasi-contractual grounds. Pyeatte, 135 Ariz. at 353, 661 P.2d at 203; D. Dobbs, Remedies § 4.2 at 237 (1973); 1 Williston, Contracts § 3 and 3A at 10-15 (3d ed. 1957). Whereas an implied in fact contract is a true contract, it differs from an express contract because it is proved by circumstantial evidence and not by express written or

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oral terms. Pyeatte, 135 Ariz. at 353, 661 P.2d at 203. By contrast, a quasi contract is not a contract, but it is a duty imposed in equity to prevent unjust enrichment. Id. As this Court stated in its May 24, 2004 order, had this Court not found in contract for the Plaintiff (which the Court did), the Court would still have found for the Plaintiff under quantum meruit / unjust enrichment. The testimony of Plaintiff Shimko and the invoices provide

substantial evidence to support the fact that a benefit was conferred upon Dr. Guenther and his partners, and that the Plaintiff expected to get paid for those services, and that Dr. Guenther and his partners have benefited from those services at the Plaintiff's expense. This Court's May 24, 2004 order indicated that: "we would have found in favor of Shimko and against Guenther for unjust enrichment, since he benefited from the legal services and did not pay for them." (Ex. 1.) This Court further ruled: "if we were to look simply at

unjust enrichment, we would reduce damages by an allocation of work simply to Guenther, and we would reduce the fee from the contracted amount of $350.00 an hour to a lesser, more reasonable amount." (Id.) Applying this Court's reasoning from its May 24, 2004 order, to allocate that portion of the bill related to work done for Dr. Guenther requires some simple division. In the underlying mass of lawsuits, the Plaintiff represented Dr. Guenther and his wife, along with his three (3) partners and their wives. Therefore, to allocate the bill evenly amongst the four (4) partners, to wit: Guenther, Goldfarb, Ross, and Woodcock, would simply require the Court to divide the bill by four. Under this computation, Dr. Guenther would be responsible for ¼ of the firm's bill,

which is ¼ of $359,668. Dr. Guenther would be responsible for $89,917 under this analysis. The Plaintiff submits that the hourly rate of $350.00 was reasonable for two important reasons. First, the parties agreed to it. Dr. Guenther and his partners paid the Plaintiff his hourly

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rate of $350.00 for several months before they fell behind on the firm's bills. This evidences the fact that Guenther at least implicitly agreed to the reasonableness of this fee. Secondly, the fee is not clearly excessive given the skill of Plaintiff Shimko and the nature of the work that was being done. As illustrated above, Plaintiff Shimko has thirty (30) years experience as a trial lawyer. He has been rated as one of the top lawyers in Ohio by his colleagues. And, the nature of the representation that was handled justifies the fees charged. After all, Dr. Guenther and his partners were sued in forty (40) separate lawsuits alleging fraud and RICO. This was no doubt a serious matter. If the Court is to reduce the hourly rate at all, which it should not, nothing more than a de minimis reduction should be given. IV. Conclusion Dr. Guenther was aware that he faced potential personal exposure outside of the envelope of protection that his method of ownership in CLS and CMS provided him, and therefore, he and his partners engaged Plaintiff Shimko and his firm to represent them in anticipated litigation. As part of that representation, the Plaintiff provided services which were accepted and were paid for (up to a point). However, Plaintiff Shimko and his firm are still owed $359,668 for the services provided to Dr. Guenther and his partners. The Plaintiff is entitled to an award of reasonable damages on this debt.

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RESPECTFULLY SUBMITTED on this 3rd day of March, 2008. TIMOTHY A. SHIMKO & ASSOCIATES

By:

/s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) David A. Welling (OSBN 0075934) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiffs

COPY of the foregoing electronically filed and served this 3rd day of March, 2008 upon: Roger L. Cohen, Esq. #004409 JABURG & WILK, PC 3200 North Central Ave., Ste. 2000 Phoenix, Arizona 85012 Phone: 602-248-1000 Counsel for Defendants Ross Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Ste. 1051 Phoenix, Arizona 84208 Counsel for Defendants Woodcock Milton and Kathi Guenther 3642 E. Rockwood Phoenix, Arizona 84032 Defendants in pro se David and Rhonda Goldfarb 11437 N. 53rd Place Scottsdale, Arizona 8525 Defendants in pro se

/s/ Mildred Pacheco

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