Trials & Litigation
Lawyer mistakenly filed ‘verbatim copy’ of opponent’s temporary, resulting in loss for Romantics band member
Bassist Mike Ability performs with the Romantics through the Little Stevens Underground Storage live performance poolside on the Seminole Exhausting Rock Lodge and On line casino on April 2, 2006, in Hollywood, Florida. (Photograph by Ralph Notaro/Getty Images)
A trial courtroom didn’t abuse its discretion when it required a member of the rock band the Romantics to pay triple damages after his new legal professional filed a “verbatim copy” of the opponent’s temporary by mistake, the Michigan Court docket of Appeals has dominated.
The appeals courtroom dominated in opposition to the Romantics guitarist Mike Ability in a lawsuit alleging that he wrongly diverted royalty funds to himself.
Law360 has protection.
The trial decide had ordered Ability to pay triple damages of greater than $232,300, as requested by the plaintiffs of their movement for abstract disposition. The appeals courtroom affirmed in a Feb. 29 unpublished opinion.
Ability co-wrote the music “What I Like About You,” based on Law360.
Ability’s lawyer meant to file an opposition to the plaintiff’s movement for abstract disposition, the appeals courtroom stated. As a substitute, the June 2022 temporary was a cut-and-paste of the plaintiff’s temporary in assist of abstract disposition, signed by Ability’s lawyer, who was not named within the opinion.
The brand new legal professional stated a paralegal had filed the mistaken temporary. It was filed on the prolonged deadline day for a response to the abstract disposition request. Ability’s lawyer tried to file an amended temporary the following day, however the trial decide apparently rejected it.
The decide granted abstract disposition to the 2 plaintiffs—an organization shaped to handle enterprise affairs for the band referred to as Grasp Beat Inc. and fellow band member Walter Palamarchuk, who goes by the stage identify Wally Palmar.
The trial courtroom reasoned that it might reject the brand new temporary and award abstract disposition to the plaintiffs based mostly on well timed filings earlier than the courtroom. The trial decide additionally stated proof established Ability’s legal responsibility for conversion, breach of fiduciary obligation and unjust enrichment.
Palamarchuk was president of Grasp Beat, and Ability was secretary-treasurer. The corporate had contractual agreements requiring the cost of royalties to Grasp Beat, which might then distribute royalties to previous and current band members beneath varied contractual agreements.
Ability thought that he was entitled to royalties with out the cash first passing by Grasp Beat, and he took steps to divert royalties to himself in late 2020, the swimsuit alleged.
There may be some proof, the appeals courtroom stated, that Ability apparently obtained about $26,700 in royalties immediately from Sony Music Publishing and $30,000 in royalty funds from Ok-Tel Worldwide earlier than Grasp Beat grew to become conscious of it. The proof, nonetheless, isn’t solely clear from the document, the appeals courtroom stated. There may be additionally some proof that Ability withdrew $20,000 from a checking account belonging to Grasp Beat in July 2021, considering that he was entitled to the cash.
The lawyer who filed the mistaken temporary had taken over in Could 2022 from a earlier lawyer who sought to withdraw on the alleged floor that Ability had not paid his authorized payments. The brand new lawyer blamed the submitting mistake on the quick timeframe between the time that she got here aboard and the due date for the response, on her personal sickness because the deadline approached, and on her paralegal’s failure to file the temporary ready by Ability’s former lawyer as instructed.
On the deserves, Ability’s lawyer argued that he couldn’t convert funds that already belonged to him.
“Beneath these circumstances,” the appeals courtroom stated, “defendant has not demonstrated that the trial courtroom abused its discretion by declining to allow the submitting of a corrected temporary after the deadline imposed by the scheduling order had handed. … Moreover, on the document earlier than the trial courtroom in gentle of the shortage of a correctly and well timed filed responsive temporary, the trial courtroom didn’t err by granting plaintiffs’ movement for abstract disposition.”
