Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vigilant Investors' L.P., et al v. Wayne Lamprey et al

December 6, 2010

VIGILANT INVESTORS' L.P., ET AL., PLAINTIFFS AND APPELLANTS,
v.
WAYNE LAMPREY ET AL., DEFENDANTS AND RESPONDENTS.



The opinion of the court was delivered by: Dondero, J.

Vigilant Investors v. Lamprey

CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After coming out on the wrong end of an 18-day private arbitration proceeding, plaintiffs Vigilant Investors' L.P. and Vigilant Investors' Asset Management LLC appeal from the judgment confirming an arbitration award in favor of defendants Robert Goodin, Robert A. Goodin, Inc., Goodin, MacBride, Squeri, Day & Lamprey LLP, Robert Crowe*fn1 and Wayne Lamprey. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On September 25, 2007, plaintiffs filed a first amended complaint (FAC) against defendants Wayne Lamprey, Robert Goodin, Robert A. Goodin, Inc., Goodin, MacBride, Squeri, Day & Lamprey LLP, Robert Crowe (collectively referred to as Goodin), David Markun, Markun Zusman & Compton LLP (collectively referred to as Markun), Jeffrey Ross, and Anthony Ostulund & Baer, P.A. The FAC alleges 13 causes of action against the defendants, including claims for professional negligence (legal malpractice), breach of fiduciary duty (constructive fraud), negligent misrepresentation, breach of contract, breach of implied covenant of good faith and fair dealing, abuse of process, and declaratory relief.

In the FAC, plaintiffs stated that they are a hedge fund that "develops and executes proprietary investment strategies using options on equities and equity indices." The named defendants are four sets of attorneys and their respective law firms who jointly and/or successively represented plaintiffs in a securities litigation matter in an arbitration before the National Association of Securities Dealers (NASD). The underlying action sought damages from plaintiffs' broker ABN Amro (ABN) "for issuing erroneous margin calls on the basis of systemically miscalculated margin requirements . . . ." Plaintiffs alleged that defendant Markun failed to adequately prepare for the NASD arbitration, forcing them to seek new counsel on the eve of the arbitration hearing. Plaintiffs then retained Goodin. Plaintiffs were subsequently dissatisfied with Goodin's performance at the arbitration hearing, and the firm withdrew from the case after attempting to negotiate a settlement with ABN. At that point, the FAC alleges Goodin failed to fulfill its contractual obligation to find and secure experienced and competent replacement counsel. As a result, plaintiffs were forced to find their own replacement counsel, who ultimately was able to secure a "substantially higher" settlement than that which Goodin had negotiated. The FAC further complains that Markun and Goodin then sought to use the higher settlement figure as the basis for calculating their 30 percent contingency fee payment in spite of their deficient representation.

On November 26, 2007, Markun filed a petition to compel arbitration or, in the alternative, for change of venue. The petition to compel was based on a provision within its retainer agreement with plaintiffs.*fn2

On December 7, 2007, Goodin filed its answer to the FAC. As one of its affirmative defenses, Goodin alleged that the causes of action against it were subject to binding arbitration pursuant to the parties' contingency fee agreement. That same day, Goodin filed a cross-complaint against plaintiffs, alleging causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, quantum meruit, account stated, fraud, and conversion.*fn3

In its cross-complaint, Goodin painted a very different picture of the ABN matter. The law firm stated it had fully prepared for the NASD hearing, in spite of the fact that it only had six weeks to do so. Goodin claimed the arbitration proceeded well until Mr. Elliot Blumberg, the sole owner of Vigilant, testified. During his testimony, Blumberg reportedly " 'froze' and could not speak for a period of time." Thereafter, his behavior "became increasingly bizarre as the hearing progressed," causing Goodin to "have concerns about Mr. Blumberg's honesty and truthfulness." Ultimately, Goodin obtained a settlement offer from ABN in the amount of $2,275,000. Plaintiffs rejected the offer and retained new counsel, who secured a settlement of $3.5 million.

On December 10, 2007, Goodin filed a statement of non-opposition to Markun's petition to compel arbitration. In its statement, Goodin expressly consented to submitting all the causes of action alleged in the FAC and the cross-complaint to binding arbitration. That same day, plaintiffs filed their opposition to Markun's petition.

On December 21, 2007, the trial court held a hearing on Markun's petition to compel arbitration. Plaintiffs counsel indicated that he was not opposing the court's tentative decision to grant the motion, but that he wanted the order to reflect that all the parties, including Goodin, would fully participate in the arbitration. The trial court directed the parties' attorneys to leave the courtroom in order to discuss the form of the ruling. After all counsel met, they advised the court the entire matter would proceed to arbitration. Plaintiffs requested that the action not be dismissed in order "to deal with any issues that fall outside the arbitration and, additionally, to provide a vehicle for a judgment to enforce the arbitration award when it is finally done to avoid the refiling and the expense of a new complaint." The court filed its order granting the petition to compel arbitration and dismissing the FAC without prejudice. The order signed by the trial court clearly indicates all legal issues would be addressed at the arbitration. The issue of whether Goodin's cross-complaint should also be dismissed was not raised by the parties or the court.

The arbitration was held over a period of 18 days between October 27, 2008, and January 29, 2009. The final arbitration award in favor of Goodin was made on May 13, 2009. The arbitrators rejected plaintiffs' claims against Goodin and awarded $1,319,384.73 to Goodin as follows: $387,490 for the reasonable value of its services, $86,840.22 in prejudgment interest, and $845,054.51 in attorney fees and costs. Additionally, demonstrating the scope of the arbitration, the panel ruled in favor of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.