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Kafrissen v. Kotlikoff

October 1, 2010

SAMUEL F. KAFRISSEN, ET AL.
v.
BRITTA KOTLIKOFF, ET AL.



The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge

MEMORANDUM OF DECISION

Presently before the court is a motion for partial summary judgment to release funds and deny claims (Doc. No. 54), filed on behalf of defendant Britta Kotlikoff, individually and as Executrix of the Estate of Louis J. Kotlikoff. Plaintiffs, Samuel F. Kafrissen, Carole F. Kafrissen and Kotlikoff Kafrissen, LLC, oppose the motion. For the reasons that follow, the court will deny the motion.

I. FACTS

Viewing the evidence in the light most favorable to the non-movants, the following are the material facts.

In the summer of 2004, Louis Kotlikoff, Esquire, made an offer to Samuel and Carole Kafrissen to join together to create a law firm. (Declaration of Samuel F. Kafrissen ¶ 1, hereinafter referred to as "Declaration.") Mr. Kotlikoff had known the Kafrissens for many years, and the parties maintained a friendly, professional relationship. Id. Prior to this time, Mr. Kotlikoff had his own law firm, with associates, which handled personal injury claims. Id. ¶ 2. Mr. Kotlikoff explained to the Kafrissens that he needed to partner with other lawyers because he was in declining health due to a brain tumor, and that the Kotlikoff firm had financial difficulties caused by a decline in business and the loss of his two associates, Craig R. Fishman and Allen J. Littlefield. Id.

During the summer and fall of 2004, Mr. Kotlikoff had extensive conversations with the Kafrissens about their possible joinder in a new law firm. Id. ¶ 4. Mr. Kotlikoff told the Kafrissens that he initiated litigation against his former associates, Fishman and Littlefield, for improperly taking clients' cases with them when they left the firm (the "Fishman Litigation").

Id. Mr. Kotlikoff also informed the Kafrissens that he needed help in rebuilding the firm "in order to protect the firm's prestigious reputation during his lifetime and after his death." Id.

The Kafrissens allege that to induce them to join Mr. Kotlikoff in this new law firm, Mr. Kotlikoff promised that the Kafrissens would receive b of all net revenue, including b of the proceeds from the Fishman Litigation. Id. "Kotlikoff pledged this to the firm without limitation, because the firm required this infusion of money to prosper." Id. The Kafrissens further aver that the parties "jointly drafted a two-page agreement which they understood entitled the Kafrissens to b of all net revenue, including the Fishman litigation proceeds." Id. ¶ 6. The Kafrissens state that after Mr. Kotlikoff reviewed the agreement with his attorneys, both parties signed the agreement. Id. ¶ 7-8. The two-page written agreement, signed by the parties, provided the following, in pertinent part:

To: Lou Kotlikoff, Esq.

From: Samuel Kafrissen, Esq.

October 4, 2004 We look forward to forming a joint venture (or other agreeable entity) for the specific limited purpose of working together on the list of cases which you presently have (list to be attached) and such future cases that will come into the office.

You have indicated to us that the revenue in place, cash in the account, case receipts and revenue from your two former associates is sufficient to cover the operating costs and case costs from the inception, and that neither of us should have to fund these costs.

We expect to fund future operating costs from firm revenue.

If the revenue exceeds the operating costs we will reserve up to four months future projected operating costs before ...


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