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Vincent v. Bunch9/10/1999
SECOND DIVISION
Charles Vincent sued attorney Gary Bunch and Gary Bunch, P.C. ("law firm") for fraud relating to a $10,000 check written to the law firm. Finding that the four year statute of limitations had run, the trial court granted summary judgment to the defendants. Vincent appeals.
After sustaining catastrophic burns over 80 percent of his body, Vincent retained Bunch and Gary Bunch, P.C., to represent him in a personal injury lawsuit against Richards & Associates ("R & A"). On May 17, 1991, while the jury was deliberating, the parties reached a $250,000 settlement from which the law firm would receive $50,000.
Nearly immediately, Bunch's former wife, Wilma L. Bunch, sued Gary Bunch, Denise S. Bunch, Gary Bunch, P.C., R & A, and Charles and Lola Vincent. She sought a temporary restraining order ("TRO") to prevent the disbursement of the settlement proceeds and requested that the funds be paid into the registry of the court. Wilma Bunch asserted that as of the May 30, 1991 hearing date, Gary Bunch owed an accrued arrearage of more than $100,000 for alimony, child support , attorney's fees and post-judgment interest. At the hearing on the TRO, Gary Bunch represented the Vincents and himself, notwithstanding the court's stated concern that his interests and those of the Vincents might be adverse.
In opposing the TRO, Gary Bunch informed the court that the law firm
has $20,000.00 or $15,000.00 worth of bills for the Vincents for instance. The law firm contracted with the experts. I didn't contract with the experts. The law firm has those obligations right now to pay the experts in the Vincents' case for instance. We had the deposition costs of the doctors, we had the costs of getting the exhibits, for instance.
Bunch told the court that he was uncertain about the total fee and how much the Vincents needed to reimburse the firm. He stated "some discount" might be given but, "we've got a lot of bills that need to be paid which the Vincents are kind of ultimately responsible for but we were contracting for them." Although the court refused to grant the TRO, it granted R & A's request that the entire $250,000 settlement be deposited into the registry of the court.
On June 10, the court released $137,500 to Vincent. Lola Vincent, his spouse, then paid the bills of several vendors directly. On August 12, an additional $12,626.48 was released to Charles Vincent from the settlement funds. Lola Vincent testified that they were then asked to make a payment of $10,000 to the law firm for costs incurred on their behalf. On August 14, 1991, Lola Vincent wrote a check payable to Gary Bunch, P.C. for $10,000.
Until June 1994, Bunch continued to act as Charles Vincent's attorney for various legal matters. But in August 1995, nearly four years after the issuance of the $10,000 check, Charles Vincent learned for the first time that Gary Bunch considered this check as a personal gift from the Vincents and not as payment to the law firm for legal expenses. A few months after that discovery, Vincent sued Bunch and the law firm for receiving money through false pretenses, for using the money for their own benefit, and for engaging in fraudulent conduct. Vincent alleged that Bunch and the law firm misled and deceived him and his wife that the $10,000 payment had been for litigation costs and expert fees.
On summary judgment, the parties offered conflicting evidence regarding the $10,000 check. Nevertheless, it is undisputed that this check was drawn on the Vincents' joint checking account and was made payable to "Gary Bunch, P.C." The endorsement on the back of the check recited: "FOR DEPOSIT ONLY
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