Ellzey & Associates Disgorges Fees From Defendant Attorney for Breach of Fiduciary Duty

After a five-day jury trial, Jarrett Ellzey and Leigh Montgomery obtained a verdict on behalf of their client for breach of fiduciary duty against her former attorney.

Plaintiff alleged her family attorney over-billed her for services related to a child custody action. The jury agreed, finding her lawyer breached his fiduciary duty by billing for certain work he never performed, and for overfilling for work he actually performed.

After the verdict, Jarrett Ellzey and Leigh Montgomery filed a Motion for Equitable Fee forfeiture, which the trial court granted. The text of the order is as follows:

“On January 17th, 2023, after a jury determined Defendant Michael Orsak, L.P. (Defendant Orsak, LP) had breached.its fiduciary duty to Plaintiff Joan Bryant Caskey (Plaintiff), this Court heard argument as to Plaintiff’s Motion for Equitable Fee Forfeiture as to Defendant Orsak, L.P. After review of the motion, evidence submitted in support, the response, the legal authority and argument, the Court is of the opinion Plaintiff’s Motion is meritorious, and.finds as follows:

The Court HEREBY FINDS Defendant Michael Orsak, L.P.’s breach of fiduciary was a clear and serious breach of fiduciary duty. The Court FURTHER FINDS it is equitable to award Plaintiff and require Michael Orsak, L.P. to forfeit a portion of fees in the underlying matters at issue.

On January 25th, 2023, after submission of additional briefing by the parties herein, this Court heard further argument as to the appropriate amount of fee to be forfeited by Defendant Michael Orsak, L.P. Having reviewed the evidence, briefing and argument of the parties, the Court hereby OWJERS, ADJUDGES and DECREES, it is equitable for Defendant Michael Orsak, L.P. to forfeit fifteen (15) hours of its fees in the underlying matter at a rate of three hundred dollars and 0/100 ($300) per hour for a total fee forfeiture of four thousand, five hundred dollar and 0/100 ($4,500.00) to Plaintiff Joan Bryant Caskey.

IT IS FURTHER ORDERED, Plaintiff shall also recover prejudgment interest on the amount of $4,500 against Defendant Michael Orsak, L.P. at the annual rate of 7.50% simple interest. This calculation starts from the date the suit was filed on October 7, 2019, until
2/9/2023 which is the day before this Order was signed. Through February 2, 2023, the total prejudgment interest is in the amount of one-thousand, one-hundred and twenty-eight dollars and 08/100 ($1,128.08) rate of $0.92/day until the day before this Order on equitable fee forfeiture is executed. TEX. FIN. CODE §304.104; Demick Res., Inc. v. Wilstein, 471 S.W.3d 468, 487-88 (Tex. App. 2015).

IT IS FURTHER ORDERED, as the successful party to this equitable fee forfeiture proceeding, Plaintiff Joan Bryant Caskey is awarded all costs of court spent or incurred in this proceeding. Plaintiff’s costs are adjudged against Defendant Michael Orsak, L.P. TEX. R. Crv. P.
131; TEX. CIV. PRAC. &REM. CODE §31.007(b). IT IS FURTHER ORDERED, Plaintiff Joan Bryant Caskey shall also recover postjudgment interest on the entirety of this equitable fee forfeiture order, including pre-judgment interest and costs of court, accruing at an annual rate of 7 .50%, beginning on the date the order is signed and ending on the date the judgment on the order is satisfied in full. TEX. FIN. CODE §304.003; 304.005.”

Order of the Court Below: