| UNITED STATES DISTRICT COURT | EASTERN DISTRICT OF WISCONSIN |
THOMAS R. FRAZIER
2561 Aladdin Street
Roseville, Minnesota 55113-3409
| v. | Case No. |
GERALD P. BOYLE
2051 West Wisconsin Avenue
Milwaukee, Wisconsin 53233
Plaintiff, Thomas R. Frazier, by his attorneys, John C. Cabaniss and Christopher Hale, for his complaint against defendant, alleges as follows:
1. This is an action for money damages, the amount of which exceeds $75,000 exclusive of interest and cost.
2. Jurisdiction is conferred upon this Court pursuant to Section 1332 Title 28 of the United States Code in that there exists diversity of citizenship between plaintiff (Minnesota) and defendant (Wisconsin).
3. Venue is proper in the United States District Court for the Western District of Wisconsin in that defendant Boyle practices law within the district.
4. Plaintiff Thomas R. Frazier is an adult residing at 2561 Aladdin Street, Roseville, Minnesota 55113-3409.
5. Defendant Gerald P. Boyle is an attorney licenced to practice law in the state of Wisconsin; his law offices are located at 2051 West Wisconsin Avenue, Milwaukee, Wisconsin 53233.
6. In December 1997, plaintiff Thomas R. Frazier hired defendant Gerald P. Boyle to act as his lead attorney in a pending action captioned Thomas R. Frazier v. Michael Linbloom, Laurie Neilson a/k/a Laurie Hrkal, Erin Johnson and Bachman's Inc., PI-97-008738, District Court Fourth Judicial District, County of Hennepin, Minnesota. Defendant Boyle agreed to represent plaintiff on a contingent fee basis; plaintiff agreed defendant Boyle would receive 40 percent of any monies recovered by settlement or verdict; it was further agreed plaintiff would advance $100,000 to cover case costs and expenses. Plaintiff paid $100,000 to cover costs to Mr. Boyle as agreed; defendant Boyle did not reduce the terms of the fee agreement to writing.
7. When defendant Boyle discussed the case with plaintiff in December 1997, he knew that plaintiff believed his pending case in Minnesota was just like Jerrold McKenzie's case (the Seinfeld case) wherein defendant obtained a highly publicized verdict in excess of 20 million dollars; defendant Boyle knew that plaintiff believed a similar result could be achieved for him.
8. At the time defendant agreed to become lead trial counsel for plaintiff, he knew it was a "difficult case, that there was a summary judgment hurdle," that the defendants in the underlying case felt plaintiffs claims had no merit; "there were great problems;" that "the case was sinking" and unless defendant Boyle could alter the case problems there would not be any type of trial. Defendant also knew that all discovery had been completed; the case was not going to settle; and there were allegations of frivolousness.
9. On March 31, 1998, the trial court indicated at oral argument that it was inclined to grant defendant's motion for summary judgment.
10. On June 24, 1998, the trial court in the underlying action issued a decision granting defendant's motion for summary judgment. An appeal was taken from that judgment.
11. By letter dated February 8, 1999, plaintiff requested that defendant Boyle reduce the terms and conditions of their fee agreement to writing.
12. By letter dated April 6, 1999, defendant Boyle declined plaintiff's request to reduce their fee agreement to writing and instead stated "[u]pon hearing from the Court of Appeals we can sit down and finalize the financial terms."
13. In June 1999, the Minnesota Court of Appeals issued its decision affirming the trial court's grant of defendants' summary judgment motion in the underlying case.
14. By letter dated June 25, 1999, plaintiff requested that defendant provide an accounting of costs paid and return all unspent monies.
15. By letter dated July 8, 1999, defendant Boyle denied plaintiff's request and notified plaintiff it was his position the $100,000 advance was a non-refundable retainer fee intended to cover fees and costs; defendant further implied that he would try to rectify the situation by sending money to plaintiff if he won the McKenzie case on appeal.
16. Plaintiff hereby realleges and incorporates herein paragraph nos. 1- 15.
17. Defendant Boyle failed to exercise reasonable care and was negligent in his informed consent to plaintiff regarding the difficulties and problems of plaintiff's underlying case.
18. Defendant Boyle's negligence was a proximate cause of damages to plaintiff in the amount of $100,000. Plaintiff would not have hired defendant Boyle, advanced $100,000 for costs and continued prosecution of his case if he had been provided informed consent.
19. Plaintiff hereby realleges and incorporates herein paragraph nos. 1- 18.
20. Defendant Boyle in agreeing to be plaintiff's lead trial counsel in the underlying case assumed a fiduciary duty to plaintiff.
21. Defendant Boyle breached his fiduciary duty to plaintiff in not reducing the terms and conditions of their fee arrangement to writing in violation of Supreme Court Rule 20:1.5(b) and (c).
22. Defendant Boyle breached his fiduciary duty to plaintiff in not maintaining plaintiff's $100,000 cost advance in trust in violation of Supreme Court Rule 20:1.15(a).
23. Defendant breached his fiduciary duty to plaintiff by giving $7,500 to his other client Jerrold McKenzie as a supposed consulting fee and similarly spending other costs on non-case related matters.
24. Defendant breached his fiduciary duty to plaintiff in not returning to plaintiff all monies not properly spent as costs in his case upon conclusion of the case in violation of Supreme Court Rule 20:1.16(d).
25. As a result of defendant's breach of fiduciary duty, plaintiff sustained damages in an amount to be determined at trial.
26. Plaintiff hereby realleges and incorporates herein paragraph nos. 1- 25.
27. The actions of defendant were malicious and in deliberate disregard of the rights of plaintiff thereby entitling plaintiff to punitive damages in an amount to be determined at trial.
WHEREFORE, plaintiff demands judgment against the defendant Boyle in accordance with the demands of this complaint, together with actual attorneys fees, interest, costs and disbursements, and such other relief, as the court may deem just and equitable.
Dated this ___ day of July, 2000.
LAW OFFICE OF JOHN C. CABANISS
Attorney for Plaintiff
_________________________________________
JOHN C. CABANISS
P.O. ADDRESS:
250 East Wisconsin Avenue
Suite 725
Milwaukee, Wisconsin 53202-4205
Phone: (414) 278-6066
Fax: (414) 278-1229
HALE & WAGNER, S.C. Attorney for Plaintiff
_________________________________________
CHRISTOPHER HALE
State Bar No. _________
P.O. ADDRESS:
205 East Wisconsin Avenue
Suite 300
Milwaukee, WI 53202
Phone: (414) 278-7000
Fax: (414) 278-7590
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY