Opinion
INDEX NO. 151067/2019
04-16-2021
DWAYNE CARTER, Plaintiff, v. RONALD SWEENEY, AVANT GARDE MANAGEMENT, INC. Defendant.
NYSCEF DOC. NO. 49 PRESENT: HON. JAMES EDWARD D'AUGUSTE Justice MOTION SEQ. NO. 002
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 36, 37, 42, 47 were read on this motion to/for DISMISS.
This action arises after the end of a 13-year relationship, in which defendant Ronald Sweeney (Sweeney, or Defendant) acted as the transactional attorney for plaintiff Dwayne Michael Carter, Jr., p/k/a Lil Wayne (Carter). The relationship ended when Carter fired Sweeney on September 18, 2018. Now, Carter brings this action, seeking to recoup the legal fees that he paid Sweeney throughout those 13 years. Defendants move to dismiss the first amended complaint (Complaint).
Carter is a resident of Florida. Sweeney is a resident of New York. He is licensed to practice law in California, but his license was suspended from September 16, 2005 to March 20, 2007, and again from July1, 2008 to July 9, 2008. Avant Garde Management, Inc. is a corporation created by Sweeney.
The Complaint, which seeks, among other, nonmonetary, relief, the recovery of all the legal fees that Carter payed Sweeney in the course of 13 years, alleges the following 10 causes of action: (1) fraudulent inducement, (2) legal malpractice, (3) breach of fiduciary duty, (4) unjust enrichment, against both defendants, (5) violation of California Business and Professional Code § 6147, (6) violation of California Business and Professional Code § 6148, (7) violation of California Business and Professional Code §§17200-17219, (8) violation of N.Y. General Business Law (GBL) §349, against both defendants, (9) violation of N.Y. Judiciary Law § 487, against both defendants, and (10) a request for a declaratory judgment.
The first cause of action alleges that Sweeney fraudulently induced Carter to pay him for legal services by representing that he was "an attorney authorized to provide legal services to Carter on an ongoing basis," and that "he held himself out . . . as a practicing attorney with an office in New York." Complaint, §§ 77-78. It is undisputed that: except for the two periods when his license was suspended, Sweeney was, in fact, a practicing attorney authorized to provide legal services to Carter. It is also undeniable that Sweeney customarily used his Manhattan apartment as an office. Plainly, any claim about the periods during which Sweeney's California license was suspended are time-barred. The complaint alleges no fact to show that Carter was harmed by the fact that Sweeney was licensed in California, rather than in New York. The Complaint alleges neither that Carter requested advice, nor that Sweeney offered advice about, any matter of New York law.
The limitations period within which a claim for fraud must be brought is six years, although that period can be extended when, for certain reasons, the fraud cannot be discovered within that limitations period. CPLR 213 (4). Here, Sweeney's membership in the California bar, the times when that membership were suspended, and Sweeney's non membership in the New York bar, were all readily ascertainable from publicly available records. Accordingly, Carter's claim that he was fraudulently induced to retain Sweeney lacks merit, as well as being plainly time-barred.
It is established that a plaintiff alleging legal malpractice must show that such malpractice "proximately caused actual and ascertainable damages." Rudolph v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d 438, 443 (2007). The Complaint, instead, alleges the same $20,000,000 in damages that it alleges with regard to multiple other causes of action. It is also established that, in order to make a prima facie case of legal malpractice, the plaintiff must show that he or she would have prevailed in underlying litigation, but for the attorney's negligence. Davis v Klein, 88 NY2d 1008, 1009-1010 (1996); Schorsch v Moses & Singer, L.L.P., 60 AD3d 557, 557 (1st Dept 2009). The Complaint alleges that, when Carter and one of his companies were sued by their New York litigation counsel over their nonpayment of legal fees, Sweeney negotiated a settlement for Carter, but, after Carter failed to pay the negotiated sum, and a second action was commenced to recover the fees, Sweeney, although notified of that action, negligently failed to act, thereby allowing the New York firm to obtain a default judgment "for hundreds of thousands of dollars." These allegations fail to specify "ascertainable damages," Rudolph at 443, and it is no more than "an insufficient speculation" (Rodriguez v Lipsig, Shapey, Manus & Moverman, P,C., 81 AD3d 551, 557 [1st Dept 2011]) that Carter, who had failed to pay his New York counsel, and then failed to pay a settlement of that counsel's claim, would have prevailed in that counsel's subsequent suit.
For the rest, this claim repeats many of the allegations raised in the first cause of action and, inexplicably, faults Sweeney for "breaching his duty of care by his advice concerning the California litigation firm's written contingency fee agreement." NYSCEF Doc, No. 5, ¶94. The Complaint discloses that "[i]n March 2018, the California litigation firm negotiated a settlement of [two matters] . . . which required certain payments to Carter and [his record label]. NYSCEF Doc. No. 5, ¶ 60. If Carter was dissatisfied with that settlement, he fails to explain either why he was dissatisfied, or how Sweeney might have been at fault, in connection with the matter.
A cause of action alleging breach of fiduciary duty is governed by a three-year limitations period if the plaintiff seeks monetary damages, but to a six-year period, if the plaintiff seeks only equitable relief. Here, Carter's claim to a return of the attorney's fees that he paid Sweeney is a claim for damages, and the three-year rule applies. Access Point Med. LLC v Mandell, 106 AD3d 40, 44 (1st Dept 2013); see also IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 (2009) (applying three-year limitations period to breach of fiduciary duty claim, where relief sought was primarily money); see Jemima O. v Schwartzapfl, P.C, 178 AD3d 474, 475 (1st Dept. 2019), citing Kaufman v Cohen, 307 AD2d 113, 118 (1st Dept 2003) (same).
Plaintiff argues that the Statute of Limitations was tolled by the continuous representation doctrine. However, that doctrine imposes a toll "only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice." Shumskey v Eisenstein, 96 NY2d 164, 168 (2002). Moreover, "there must be a mutual understanding of the need for future services in connection with the same subject matter," Davis v Cohen & Gesser, LLP, 160 AD3d 484, 486 (1st Dept 2018). Here, to the contrary, the Complaint alleges, as plaintiff himself describes it, "many ongoing acts." Indeed, plaintiff's attempt to recoup the fees that he paid, over a 13-year period, shows that he views every legal service provided to him by Sweeney as an instance of both malpractice and breach of fiduciary duty. Finally, Carter offers no argument, or legal authority, to support the proposition that it is a breach of fiduciary duty for a lawyer to charge more than the going rate.
Unjust enrichment is a quasi-contractual obligation that is:
"imposed by law where there has been no agreement or expression of assent by word or act on the part of either party involved. The law creates it . . . to assure a just and equitable result."Clark-Fitzpatrick. Inc. v Long Is. R.R. Co., 70 NY2d 383, 388-389 (1987); see also Graciano Corp. v Lamark Group, Inc.,184 AD3d 435, 435 (1st Dept 2020). Here, Carter assented by deeds over a 13-year period to the oral agreement between the parties. Moreover, it follows from Carter's complaint that, if Sweeney received fees totaling $20 million, Carter, during the same 13 years, received payments of $200 million from contracts negotiated by Sweeney. While Sweeney's fees may have been high by musical industry standards, as the complaint alleges, they were not so high as to require the intervention of equity, especially inasmuch as Carter appears not to have objected to Sweeney's fees until after he fired him, 13 years into their professional relationship.
The fifth and sixth causes of action, both of which allege violation of the California Business and Professional Code, are dismissed, because neither of those provisions gives rise to a private cause of action for damages. "[A] private right of action exists only if the language of the statute or its legislative history intended to create such a right." Vikco Ins. Servs., Inc. v Ohio Indemn. Co., 70 Cal. App. 4th 55, 63 (Ct. App. 1st District 1999). Both statutes provide that fee agreements which fail to comply with the terms of the statutes may be voided at the client's option, upon which the attorney may "collect a reasonable fee." Cal. Bus. & Prof. Code, §§ 6147 (b), 6148 (3) (c). Neither provides for a cause of action for damages.
The seventh cause of action alleges a violation of California Business and Professional Code §§ 7300-7210. Like GBL §349, discussed below, the California Unfair Competition Law is applicable "where a defendant's business practice is likely to deceive consumers," Massachusetts Mutual Life Ins. Co. v Superior Ct. of San Diego County, 97 Cal App4th 1283, 1291(Ct. App. 4th District 2002); see also Downey v Public Storage, Inc., 44 Cal. App 5th 1103, 1114 (2020) (applicable where "members of the public are likely to be deceived.")
The Eighth cause of action is dismissed, because GBL §349, which prohibits deceptive acts or practices in the conduct of any business or trade, is not applicable to private disputes that are not "consumer oriented," that is, acts or practices that impact "consumers at large." Playin v Group Health Incorporated, 35 NY3d 1, 10 (2020) quoting Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank,86 NY2d 20, 25 (1995). The Complaint does not allege even a single fact showing that Sweeney took any action that affected New York consumers at large. See NYSCEF Doc. No. 5, 139-140.
Absent deceit directed at a court, Judiciary Law § 487 applies solely when the alleged deceit takes place in the course of a pending judicial proceeding. US Suite LLC v Baratta, Baratta & Aidala LP, 171 AD3d 551, 551 (1st Dept 2019) Maimateas v Carter Ledyard & Millman LLP, 103 AD3d 643, 643 (1st Dept 2013), citing iCostalas v Amalfitano, 305 AD2d 202, 204 (1st Dept 2003). The Complaint does not allege that any deceit, on the part of Sweeney, took place in the course of such a proceeding. Rather, it merely recites that the "course of deceitful conduct," that Carter accuses Sweeney of having engaged in, persisted while litigation, in which Sweeney was not involved, was ongoing. NYSCEF Doc. No. 36, at 36; see also NYSCEF Doc. No. 5 at 145-146. That a deceitful act occurs contemporaneously with a pending judicial proceeding does not satisfy the requirement that it take place in the course of such a proceeding.
Because the Judiciary Law § 487 is dismissed as against Sweeney, the court, sua sponte, also dismisses the claim as against Avant Guard Management, INC., because the latter claim depends entirely on the viability of the former claim.
Finally, Carter seeks a declaratory judgment that, for the most part, seeks the same relief that he seeks in his first nine causes of action, for the same reasons as those put forth in those causes of action. Because the first nine causes of action are dismissed, to the extent that the 10th repeats them, it fares no better. However, ¶ 149 (d) of the Complaint seeks a declaration "whether and to what extent Sweeney is entitled to unpaid amounts now or in the future pursuant to any purported oral contingency agreement." When Carter fired Sweeney, Carter, at least implicitly, voided the agreement that had governed their relationship for the preceding 13 years. Accordingly, there is an issue of what would constitute "a reasonable fee," pursuant to Cal. Bus. & Prof. Code §§ 6147 (b) and 6148 (3) (c), from the time of Sweeney's termination up to the present, and for the future. The parties will be allowed to submit additional briefs on this issue, not to exceed 15 pages in length, within 30 days of entry of this order.
Accordingly, it is hereby
ORDERED that defendant Ronald E. Sweeney's motion to dismiss the First Amended Complaint is granted to the extent that the first nine causes of action asserted in that complaint, as well as subsections a, b, and c of the 10th cause of action are dismissed; and it is further
ORDERED that the parties may submit additional briefing concerning subsection d of the 10th cause of action in a manner consistent with this decision. 4/16/2021
DATE
/s/ _________
JAMES EDWARD D'AUGUSTE, J.S.C.