A Court Reporter By Any Other Name

An attorney’s attempt to avoid paying for court reporting services failed to persuade  the West Virginia Supreme Court of Appeals

Petitioner is an attorney who is licensed to practice law in the State of West Virginia. In 2016, he contacted Samantha Frey for the purpose of engaging her services as a court reporter. In all, petitioner and Ms. Frey scheduled depositions for five dates in March and May of 2016 in the case of Hall v. City of Clarksburg, a federal court action in which petitioner represented the plaintiff, Gregory Hall. At the time, Ms. Frey’s business was a sole proprietorship located in the State of Maryland and known as “ELSS Executive Reporting.” It is undisputed that court reporting services were rendered by Ms. Frey and her associate and that petitioner was provided with the transcripts resulting therefrom.

Meanwhile, on April 15, 2016, Ms. Frey’s business reorganized and became a limited liability company known as “ELSS Executive Reporting, LLC.” According to Ms. Frey, the reorganization was done on the advice of her accountant “for tax purposes.”

Petitioner was subsequently billed for the court reporting services provided in the total amount of $8,224.75. On July 25, 2016, petitioner tendered a check in the amount of $500.00 as partial payment. However, Ms. Frey rejected the payment because, according to her counsel, “[t]here was concern about that being somehow accord and satisfaction.”

Respondent thereafter filed a complaint against petitioner and Mr. Hall in the Circuit Court of Jefferson County alleging claims of breach of contract, unjust enrichment, quantum meruit, and “fraud/deceit/theft.” During the course of discovery, petitioner admitted contacting Ms. Frey to engage her court reporting services; admitted that Ms. Frey and her associate, another court reporter he identified as “Linda,” took the depositions of witnesses and provided petitioner with the transcripts; testified that he was “not dissatisfied with the service that was provided to us”; and does not dispute the amounts owed for such services as they appear on the invoices. However, according to petitioner, in contingency fee cases, it is his clients who are responsible for the payment of costs and expenses incurred in connection with the litigation. Accordingly, petitioner believed that Mr. Hall was responsible for payment of the court reporting services at issue.

The attorney contended that the change in the company name should defeat summary judgement.

The court

the undisputed evidence does clearly support an award of summary judgment in favor of respondent albeit for a different reason…

It is undisputed that petitioner contacted Ms. Frey and engaged her services as a court reporter. On five occasions, either Ms. Frey or her associate took the depositions of witnesses in the Hall matter and provided petitioner with the transcripts. Petitioner does not challenge the amounts owed for the services rendered and conceded that he was “not dissatisfied” with them. As evidence that petitioner believes he is, in fact, responsible for the services he used and from which he benefited, he attempted to make a $500 partial payment on the amount owed. According to petitioner, he has not paid for the services at issue simply because “I don’t have that kind of money sitting around.”

Given these facts, this Court does not hesitate to conclude that respondent, formerly known as ELSS Executive Reporting, is entitled to payment for the services rendered at petitioner’s request and from which he benefited. Despite respondent’s failure to present competent evidence that, upon its change in organizational status from a sole proprietorship to a limited liability company, it was entitled to payment under the contract for services that were satisfactorily rendered by Ms. Frey and her associate, it is no less certain that Ms. Frey expected and deserves payment.

(Mike Frisch)