K. RODNEY MAY, United States Bankruptcy Judge
Since 1997, the debtor, Bambi Alicia Herrera-Edwards ("Herrera-Edwards" or "debtor") has received royalty income derived from the music compositions of her late husband, Bernard Edwards. In this adversary proceeding, she is challenging claims filed by Eric L. Moore, who holds himself out as a "treasure hunter" of artists' royalties.
Herrera-Edwards contends that the Consulting Agreement was procured by fraud and that Moore, a convicted felon, did not discover anything she did not already own or that her lawyers were not already working to recover. She argues that he is ineligible for an administrative expense claim because his employment was never approved by the court. She asks that Moore be made to repay about $45,000, a payment he received as compensation under the Consulting Agreement shortly before the Chapter 11. After hearing testimony over 6 days, considering the documentary evidence, and post-trial briefs, the Court is compelled to conclude that the debtor's objections should be sustained, Mr. Moore's claims should be disallowed, judgment should be entered on all counts for plaintiff, and judgment entered against Mr. Moore on his counterclaim.
Herrera-Edwards is currently employed as an airline flight attendant. At one time, however, she was married to the late Bernard Edwards, a co-founder — along with the debtor's cousin, Nile Rodgers — of the American disco/funk band Chic. Together, Mr. Edwards and Mr. Rodgers authored and performed many popular songs including "Le Freak," "We are Family," "Dance, Dance, Dance," and "Gettin' Jiggy with It."
Mr. Edwards died in 1996. His share of the music copyrights was included in his estate, which was probated in Connecticut. The debtor asserted substantial tort claims against the probate estate, but settled them in 1997 in exchange for a 37.5% interest in Edwards' copyrights.
Since 1997, Herrera-Edwards has received royalty payments from an intermediary, Jess S. Morgan & Co., Inc. ("JSM").
Between 2010 and September 2012, the debtor hired various lawyers, accountants, and financial advisers to resolve her debts and recover the suspected royalty underpayments. By this time, she had accrued a substantial federal income tax debt and attempted to borrow against her royalty income to resolve it. In the midst of these difficulties, Mr. Moore came to be involved in her financial affairs.
On July 9, 1997, Edwards' probate estate and its beneficiaries settled substantial tort claims filed by Herrera-Edwards.
Herrera-Edwards and Edwards' probate estate later entered into another agreement, dated August 21, 1997, referred to as the "Co-Publishing Agreement." (Pl.'s Ex. 6). The Co-Publishing Agreement provided for (a) the sale and assignment to Herrera-Edwards of 37.5% of all of the probate estate's right, title, and interest in the Edwards' compositions and copyrights; and (b) her relinquishment to the probate estate of "administration rights" to the copyrights.
It appears that the two settlement agreements and the Co-Publishing Agreement were parts of a single settlement transaction.
To address his cousin's suspicions of underpayment, Nile Rodgers arranged for her to consult with Richard Leher, a highly regarded entertainment attorney with Greenberg Traurig LLP, in Los Angeles, and Michael Ostin, a music executive. (7/15 Tr. pp. 16-17). In the fall of 2010, they reviewed Herrera-Edwards' royalty statements and the probate settlement documents. They concluded that her payments did not seem to reflect her full royalty rights. (5/22 Tr. pp. 184-86, 188-90; 7/15 Tr. p. 17). They believed that she had not been receiving "record," "artist," or "producer" royalties. (5/22 Tr. pp. 188-90).
Instead of hiring Mr. Leher, who commanded a premium billing rate, Herrera-Edwards selected Morgan & Morgan, P.A., who agreed to work on a 40% contingency fee to recover the unpaid royalties.
In late 2010, Herrera-Edwards needed funds. Marvin Washington, Herrera-Edwards' investment advisor, suggested that she pursue a loan. Washington introduced
Without her knowledge, Washington sent Biddle and Moore copies of Herrera-Edwards' documents. (7/15 Tr. pp. 20-22; Pl's Exs. 9, 10). Washington told Herrera-Edwards that Moore was considered a "closer" and that Biddle had contacted Moore for assistance so that Moore could help Biddle close a deal with MRCI. (7/15 Tr. p. 26). Although he and Herrera-Edwards did not meet until July 2012, Moore began gathering information about her and her royalty rights. (Pl.'s Exs. 10, 14; 7/15 Tr. pp. 20-24). But, this initial effort to borrow funds stalled.
The debtor resumed discussions with MRCI in 2011, without the direct involvement of Moore. On June 28, 2011, she executed an agreement with MRCI to obtain about $1.8 million secured by a lien on her royalty income, to be released only after MRCI had received $3.6 million.
Instead, MRCI sued JSM and BEC in California state court for interfering with the Herrera-Edwards deal. (5/22 Tr. p. 192). Initially, the claims were dismissed, but MRCI repled one claim and added Herrera-Edwards as a defendant. (5/22 Tr. pp. 192-93). In response to MRCI's lawsuit, ASCAP began withholding (in escrow) the royalty payments that were due to the debtor. Herrera-Edwards then retained Attorney Leher to represent her in the lawsuit. (5/22 Tr. p. 192).
The royalties withheld by ASCAP had grown to about $265,000 by June 2012. That's when Herrera-Edwards informed her attorney in the MRCI transaction, Mr. Minter, that her "money ran out." (Pl.'s Ex. 34).
On June 24, 2012, Mr. Minter informed Herrera-Edwards by email that Chuck Biddle claimed that "he and Moore" had found new money for her to collect.
In his subsequent conversations with Herrera-Edwards, Moore referred generally to funds that he had located, describing them as "hidden" or "misappropriated." (7/15 Tr. p. 34; 7/28 Tr. pp. 22-23). He assured her that he had located money other than what she had historically received since 1997 (7/28 Tr. pp. 22-23; 7/15 Tr. pp. 35, 39); but, he did not reveal the sources. (7/28 Tr. p. 22). In addition to claiming a quick recovery of $500,000 or more, Moore touted his work with high profile clients. (7/15 Tr. p. 42).
What he did not tell Herrera-Edwards was that he had been convicted of grand larceny in 1999 for taking investor money under the false pretense that their funds would be invested in the promotion of a Prince concert. (7/15 Tr. p. 43; Doc. 15, Answer ¶ 74, n.1, Ex. B (attaching articles describing the crime)). Moore also did not disclose that he had an oral agreement with MRCI to receive 50% of any royalty payments that he was able to recover for MRCI through its lawsuit against JSM and BEC. (Pl.'s Ex. 60).
Ultimately, Moore gained the debtor's confidence. Unlike others, Moore took time to sit down and explain the documents to her, line by line. (7/15 Tr. p. 61, 117). To her, Moore was a like a "security blanket." (7/15 Tr. p. 63). He convinced her that he had found "treasure" that her attorneys had been unable to collect. (7/28 Tr. pp. 51-52). With her historical royalty payments being withheld because of the MRCI litigation, Herrera-Edwards was led to sign the Consulting Agreement, dated July 11, 2012, because of Moore's representations that he had "found" new money. (7/15 Tr. p. 33; Pl.'s Ex. 38).
The Consulting Agreement includes three bases of compensation for Moore: (a) 17% of the funds or tangible liquid property recovered as a direct result of his services; (b) an unspecified "fee" for any recovery to client, including removal of fees, liens, etc.; and (c) an hourly fee at a rate to be agreed and a percentage of the recovery for assisting any of her legal counsel.
Having placed her confidence in Moore, Herrera-Edwards wanted him to be involved in her affairs, as her "strategist." She insisted that her attorneys work with him.
Moore advised her that a Chapter 11 would be necessary; he then selected the boutique law firm of Jennis & Bowen, P.L., to be her bankruptcy counsel. According to the debtor, Moore selected Jennis & Bowen because it lacked entertainment law capabilities and, thus, could be "controlled" by him. (7/28 Tr. p. 137-38).
Asserting his authority per Herrera-Edwards' instructions, Moore initially insisted on language being added to Jennis & Bowen's engagement letter, making him the sole contact with her bankruptcy lawyers. (7/15 Tr. p. 117). Jennis & Bowen would not do that. Instead, all the firm would agree to was the addition of the following to the engagement letter: "Moreover, pursuant to this Agreement, the Client consents and agrees that the Firm can take instructions and make communications regarding this matter from and through Eric L. Moore ("Mr.Moore")." (Pl.'s Ex. 186).
Attorney Leher succeeded in getting MRCI's lawsuit dismissed by the California court. He was engaged to obtain the release of the escrowed royalty payments. Following execution of the Consulting Agreement, but before the Chapter 11, Moore commenced a series of phone calls and emails to Attorney Leher and to ASCAP's in-house counsel and others to insert himself into the effort to obtain the withheld royalty payments. According to Moore, the "sticking point" to un-freezing these funds was MRCI's recorded UCC lien that he could get removed. (5/22 Tr. p. 83; 5/23 Tr. pp. 255-56).
The funds were ultimately released to Attorney Leher in late August 2012. (5/22 Tr. p. 195). Moore then demanded payment of 17% of the released funds as being due to him under the Consulting Agreement. He sent the debtor an invoice on September 6, 2012. (Pl.'s Ex. 91). She paid $44,953.53 on advice of Mr. Jennis that Moore's entitlement could be reviewed and challenged later in the bankruptcy case. (7/15 Tr. pp. 47-49).
Asserting Herrrera-Edwards' authority, Moore directed each of her attorneys — Leher, the Morgan & Morgan lawyers, and Mr. Jennis — not to communicate with each other. (E.g., 7/14 Tr. p. 72). According to Herrera-Edwards, Moore frequently disparaged her lawyers' efforts. (7/28 Tr. p. 52). Mr. Leher testified that Mr. Jennis was led to believe that Leher was "compromised" and should not be contacted; but Leher learned later that the source of that view was Moore, who had made that characterization to Herrera-Edwards. (5/22 Tr. p. 218). The debtor testified credibly that Moore "sold" her on the feeling that her attorneys were not doing their jobs. (7/28 Tr. p. 52).
Moore arranged a meeting at Morgan & Morgan on September 14, 2012, before the Chapter 11 filing, among himself, Herrera-Edwards, and Attorneys Darryl Rouson and Clay Townsend. Mr. Jennis was not invited to the meeting. Moore insisted that Morgan & Morgan reduce its contingency fee from 40% to 30% and that they retain him at $275 per hour, plus a percentage of any recovery. Attorney Rouson described the reaction of his firm's entertainment law specialist, Clay Townsend, as "why is Moore driving the train?" (5/23 Tr. pp. 35-36). No fee arrangement was made.
Attorney Jennis and his colleagues instructed Moore, before the Chapter 11 petition was filed and several times thereafter, that his post-petition employment and terms of compensation must be approved by the bankruptcy court. (Pl.'s Ex. 108; 5/23 Tr. pp. 222-23; 7/14 Tr. pp. 132-33; 7/17 Tr. p. 83). On or about October 12, 2012, Attorney Tate of Jennis & Bowen so advised Moore, by email. Moore's written and oral communications show that he understood that court approval was required. (Pl.'s Exs. 125, 138; 5/23 Tr. p. 231; 7/17 Tr. p. 84; 7/28 Tr. pp. 83-84).
James Cinque, a prominent New York entertainment attorney, was retained, with court approval, in November 2012, to negotiate an employment agreement with Moore. But, Moore insisted on being paid a "commission" on Herrera-Edwards' entire royalty stream, not just on any new assets found by him. After three weeks of discussions, no agreement was reached. No application for the employment of Mr. Moore was ever presented to this Court. (5/23 Tr. p. 119; 7/17 Tr. p. 84).
Even though his employment was never approved by the court, Moore held himself out as the debtor's "strategist." He continued to broadcast various theories by which he claimed to have uncovered assets, reduced fees that Herrera-Edwards owed, or eliminated claims against her estate. (5/23 Tr. pp. 197, 260; 7/15 Tr. p. 65; 7/28 Tr. p. 52).
In November 2012, Moore sent a document request to the Connecticut probate court clerk. He received back a certified copy of that court's order, entered on September 4, 1997, and a typed copy of the July 9, 1997, mediation settlement agreement. (Def.'s Ex. 18). This is what Moore has consistently referred to as the "treasure map," because, to him, it "proves" that the later-executed July 30, 1997, agreement and the Co-Publishing Agreement (which purport to give BEC all of the administration rights and allow JSM to charge certain fees) were not approved by the probate court and are therefore invalid.
Moore also took it upon himself to contact potential creditors and third parties, advising them of what claims to file or not file. (Pl.'s Exs. 80, 106, 120, 127, 128). In December 2012, Moore contacted the U.S. Trustee's office to tell them that he had "discovered" substantial claims and funds for Herrera-Edwards that he believed were not being pursued by her attorneys. (7/15 Tr. pp. 57-58; Pl.'s Exs. 133, 150, 151).
The debtor and her attorneys became increasingly troubled by Moore's undirected activities, particularly his contact with the U.S. Trustee's Office. With the recent knowledge of Moore's 1999 criminal conviction, the impossibility of reaching agreement for his employment, and his continued interference with counsel, Herrera-Edwards concluded that she could no longer
Nevertheless, Moore continued to contact Herrera-Edwards with promises of "found" money. (Pl.'s Exs. 157, 159, 160, 161, 162, 170, 173, 174, 175a). As late as June of 2013, Moore suggested to Mr. Jennis that he could procure either a $2.5 million loan from MRCI or a purchaser of her royalty rights for $8-12 million, for a 5% commission payable to Moore. (Pl's.Ex. 159).
Mr. Moore argues that he is entitled to payment because he fully performed compensable services under the Consulting Agreement by discovering copyright interests (including publisher, artist, and producer shares, administration rights, and back royalties). (Claim 18, Part 2, Ex. A). He also claims that he did copyright and probate research, put together a binder of documents, prepared charts and timelines, articulated theories of recovery, and obtained the "treasure map" from the Connecticut probate court, all of which he shared with Herrera-Edwards and her attorneys. He argues that his work will eventually lead to a substantial recovery for Herrera-Edwards.
It is evident that for more than a year — before they met and without her knowledge — Moore devoted considerable time to informing himself about Herrera-Edwards' financial condition, the 1997 probate case, her copyright interests, and her personal life. He acquired documents initially through his associate, Mr. Biddle, and his contacts at MRCI and, later, from the debtor and her attorneys. At a time when her royalty payments were being escrowed, because of a lawsuit in which he had an undisclosed financial interest, Moore promoted himself — first to Herrera-Edwards' attorney Minter, through Biddle, and then directly to the debtor herself — as being in a "unique position" to recover $500,000 or more of new money very quickly.
Under Florida law, the requirements for a claim of fraud or fraudulent inducement are (1) a false statement regarding a material fact, (2) the statement maker's knowledge that the representation is false, (3) intent that the representation induces another's reliance, and (4) consequent injury to the party acting in reliance. Thompkins v. Lil' Joe Records, Inc., 476 F.3d 1294 (11th Cir.2007) (citing Wadlington v. Cont'l Med. Servs., Inc., 907 So.2d 631, 632 (2005).
The Court is compelled to conclude that the claim of having found $500,000 (or other new sources of money) that could be recovered quickly was a falsehood and, therefore, constitutes fraud and a false pretense. There is nothing in the record to support that claim. This "$500,000" has never been identified or recovered. But, it was the critical "hook" to induce Herrera-Edwards to sign the Consulting Agreement. The fraud is compounded by Moore's undisclosed financial interest in the lawsuit which put Herrera-Edwards in a financially vulnerable position when he offered his "unique position" for a fee.
Second, Mr. Leher testified that he had identified the nature of possible royalty shortfalls in 2010, before Moore was involved. Morgan & Morgan was retained in November 2010, also before Moore became involved. Morgan & Morgan was prepared in 2011, before the Consulting Agreement was signed, to assert claims to recover the artist, producer, and other royalties that apparently had not been paid to Herrera-Edwards. (5/23 Tr. pp. 24-29).
Mr. Rouson testified, convincingly, that Moore provided no value to Herrera-Edwards. ("I didn't see [Moore] do anything."). (5/23 Tr. p. 73). Likewise, Mr. Cinque regarded Moore as providing no value to Herrera-Edwards. (5/23 Tr. p. 188). According to Herrera-Edwards, who testified credibly, the binder of Moore's work that he delivered to Jennis & Bowen consisted of her own documents. (7/15 Tr. pp. 65-67).
Moore's "treasure map" provides no value. The certified copy of the probate court's order, entered on September 4, 1997, and the typed copy of the July 9, 1997, mediation settlement agreement proves only that those documents are in that court's files, a fact which nobody disputes. (5/23 Tr. p. 251). But, it is nothing short of far-fetched to suggest that two agreements (the July 30, 1997 Agreement and the Co-Publishing Agreement), executed by well-represented parties, are invalid solely because they post-date the July 9 agreement which contemplated (Paragraph 9) that subsequent agreements would be made by the parties.
Herrera-Edwards retained Attorney Leher to represent her in the MRCI litigation (5/22 Tr. p. 192), and, as Herrera-Edwards' attorney in that lawsuit, it was Attorney Leher's responsibility to obtain the release of the withheld royalty payments. He and his firm succeeded in having the MRCI lawsuit dismissed; Leher corresponded with MRCI's counsel, counsel for JSM and BEC, and counsel for ASCAP regarding the escrowed royalties. (Pl.'s Exs. 83, 87). The escrowed funds were released to Leher. (5/22 Tr. p. 195; Pl.'s Exs. 86, 87).
Even though Moore inserted himself into the process, there is no proof that Moore's efforts contributed anything to what Attorney Leher was already doing to obtain the funds. Further, these funds were historical royalties that Herrera-Edwards would have received in the ordinary course if MRCI had not sued her payors. They were not from any new source that Moore discovered in his capacity as her "consultant."
Based on the admitted evidence, as well as credible testimony at trial, the Court finds that Moore's other claims of recovery are equally valueless.
Moore testified that he is the one who "persuaded" MRCI to terminate its lien by telling MRCI's principals that "this is illegal and we'll file charges if you don't remove it." (5/22 Tr. p. 83). But he discouraged
Counsel for Herrera-Edwards scheduled a debt to Lyric Financial based on information provided by Moore or Herrera-Edwards' accountants. (5/23 Tr. pp. 256-57). However, Lyric Financial acknowledged to Herrera-Edwards' bankruptcy counsel that it had already been paid in full. (Pl.'s Ex. 116). Moore accomplished nothing by "persuading" Lyric Financial not to file a claim in the bankruptcy case.
Moore contacted Ryan Ryan Deluca repeatedly, but they refused to deal with him. (Pl.'s Ex. 127). Ryan Ryan Deluca informed Moore that it would only communicate with Herrera-Edwards' bankruptcy counsel. (5/23 Tr. p. 257). When Herrera-Edwards' bankruptcy counsel contacted Ryan Ryan Deluca to obtain their probate case files, they were advised that that Ryan Ryan Deluca was not asserting a retaining lien on the files and would not be filing a bankruptcy claim. (5/23 Tr. p. 257). Again, Moore did nothing to "persuade" Ryan Ryan Deluca not to file a claim. That firm had refused to communicate with him and never intended to file a claim.
There is no evidence that Ryan Ryan Deluca owed the debtor anything on the petition date. The Ryan Ryan Deluca 1997 contingency fee agreement was expressly made "subject to" the Connecticut statutory limitation on contingency fees. (Pl.'s Ex. 10, MOORE, Bates stamp 000098-100). Accordingly, the fees due to that firm, by contract, could not exceed or violate the statutory cap. Years later, Herrera-Edwards settled her fee issues with Ryan Ryan Deluca and executed a general release of any claims against the firm. (Pl.'s Ex. 10, MOORE, Bates stamp 000108). Accordingly, Herrera-Edwards did not have a valid "million dollar" claim against Ryan Ryan Deluca.
The $160,000 spousal share would have been due and payable prior to the closing of the probate estate, long before Moore was involved. Herrera-Edwards' entitlement to the spousal share was expressly acknowledged in the 1997 settlement. (Pl.'s Ex. 5, p. 2). The succession tax assessment, prepared some 15 years ago, reflects her receipt of the payment.
Tanisha Mills, a CPA, testified for Moore that she was of the opinion that a potential theft loss deduction could be taken based on (1) an overpayment of fees to Ryan Ryan Deluca, (2) the 5% fee that JSM deducts from her royalties, and (3) the "theft" of Herrera-Edwards' copyright interests by JSM, BEC, and others. (7/17 Tr. pp. 113, 128, 137). Mills relied entirely on the factual information provided by Moore. (7/17 Tr. pp. 115, 117-20). She never discussed the underlying facts with Herrera-Edwards or her accountants. (7/17 Tr. pp. 117-20, 131, 137-38).
But, it has not yet been established that royalties were underpaid, or that any of the upstream payors have engaged in criminal conduct.
Second, "[i]f the theft is accomplished in a manner that results in the taxpayer failing to include the cash or property in income, or in claiming the amount of the loss as a business expense, no theft loss will be allowed."
Moore's theft loss deduction strategy is not realistic. Herrera-Edwards' special tax counsel, Mr. Heinkel, was employed to investigate the theft loss deduction being asserted by Moore. Mr. Heinkel determined that a theft loss deduction was inappropriate at this time, given the debtor's situation. (5/23 Tr. p. 259-60).
Third, none of the debtor's attorneys ever agreed to hire or compensate Moore. (5/22 Tr. p. 202; 5/23 Tr. pp. 37, 119, 217). Moore never requested an agreement with Jennis & Bowen. (5/23 Tr. p. 217). Draft applications for employment by the bankruptcy estate were prepared, but never signed or filed. (Def.'s Exs. 15, 41; 5/23 Tr. pp. 225-26, 229). Moore had earlier attempted, without success, to negotiate an employment agreement with Morgan & Morgan, and he prepared a draft amendment to their retainer agreement (5/23 Tr. pp. 34-35; Def.'s Ex. 11); but Morgan & Morgan never signed the amendment, and did not agree to compensate him. (5/23 Tr. p. 37).
For the reasons stated above, the Court concludes that the Consulting Agreement, procured by fraud or false pretenses, is invalid. The Court concludes, as well, that Moore has not provided any services which would be compensable under the Consulting Agreement even if it was valid. Mr. Moore's Claim No. 18 will be disallowed in its entirety, with prejudice. Mr. Moore will not be allowed any damage claim arising out of the rejection of the Consulting Agreement. And, judgment will be entered against him on his counterclaim.
Sections 327 and 330 of the Bankruptcy Code govern the employment and compensation of professionals. Specifically, section 327 authorizes a trustee (or debtor-in-possession), with bankruptcy court approval, to employ certain named professionals, including attorneys, appraisers, and "other professional persons." 11 U.S.C. § 327(a). Section 330(a) allows an award to a professional person employed under section 327, for reasonable compensation and actual, necessary expenses. 11 U.S.C. § 330(a)(1)(A) & (B).
The term "professional" is not limited to licensed individuals, but is to be defined more generally. For example, in In re Interstate Restaurant Systems, Inc.,
Even though Moore is not a "professional," by education or credentials, he held himself out as being an expert on the financial workings of the music industry. He claimed to the debtor and her lawyers to possess exclusive knowledge that put him in a "unique position" to recover "hidden" funds and other assets owed to the debtor, for which he wanted compensation based on a percentage of estate assets. In addition to his claims of expertise and private knowledge, Moore held himself out as a professional consultant. In the "bio" he sent to several of Herrera-Edwards' attorneys, Moore advertised himself as the President and Founder of Moore Consulting, while plugging his experience as both a "consultant" and "bankruptcy consultant." Because Moore sold himself as having the attributes of a professional person, he cannot now disavow that status for purposes of Sections 327, 330, and 503(b)(2).
Pursuant to Sections 327 and 330 of the Bankruptcy Code, Moore's employment and terms of compensation had to be approved by the Court for Moore to receive compensation from the estate.
But, his employment was never approved. Moore claims that he reasonably relied on Herrera-Edwards' promises to continue working under the terms of the Consulting Agreement and that he delivered his work product to Herrera-Edwards and her legal counsel until January 1, 2013.
Alternatively, Moore argues that he is entitled to an administrative expense claim for his services, without court approval, under Section 503(b)(1)(A) of the Bankruptcy Code as a necessary cost of preserving the estate. This Court finds compelling, however, the majority view of courts that Bankruptcy Code Section 503(b)(1)(A) is not to be used by unapproved professionals to avoid the requirements of section 503(b)(2) and the related obligations under sections 327 and 330(a).
Beyond the fact that his employment and compensation were not approved by the Court, there is another reason to deny an administrative expense claim. For a claim to be afforded administrative expense priority, it must not only be "actual" and "necessary," but also "there must be an actual, concrete benefit to the estate before a claim is allowable." In re Subscription Television of Greater Atlanta, 789 F.2d 1530, 1532 (11th Cir.1986). For the reasons stated above, the Court has
The Court is compelled to conclude that Mr. Moore is not entitled to an administrative expense claim because he was never appointed by the Court, the terms of compensation were never approved, and he provided no benefit to the bankruptcy estate.
Lastly, Moore asserts that he is entitled to recover compensation under a claim of quantum meruit. Under Florida law, any party seeking a quantum meruit claim must show that they provided, and the counter-party assented to and received, a benefit in the form of goods or services under circumstances where, in the ordinary course of common events, a reasonable person receiving such a benefit normally would expect to pay for it. Babineau v. Federal Exp. Corp., 576 F.3d 1183 (11th Cir.2009). Moore's initial retention by Herrera-Edwards in July 2012 was induced by fraud. Mr. Moore's efforts thereafter did not contribute anything of value to the debtor or to the estate. He used information provided to him initially by third parties, without Herrera-Edwards' knowledge. He seeks credit for the work of attorneys employed by the debtor (Leher). Otherwise, his efforts were of no value and actually hindered the administration of the case. For these reasons, he is not entitled to a quantum meruit claim.
In Count II, Herrera-Edwards asserts a claim for damages based on being fraudulently induced to enter into the Consulting Agreement. She asks that monies paid to Moore under the Consulting Agreement leave Moore unjustly enriched.
Under Florida law, "[a] claim for unjust enrichment has three elements: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) the circumstances are such that it would be inequitable for the defendant[ ] to retain it without paying the value thereof." Lesti v. Wells Fargo Bank, N.A., 2013 WL 6095441, *4 (M.D.Fla., Nov. 20, 2013) (quoting Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir.2012) (citations omitted)).
In this proceeding, the elements for a claim of unjust enrichment are easily established. After ASCAP's release to Mr. Leher of the escrowed $265,000, Moore demanded payment of 17% of the released funds as being due to him under the Consulting Agreement. He sent the debtor an invoice on September 6, 2012. Herrera-Edwards did not believe she owed Moore any fee on the release of these historical royalties; but, Moore — whom she trusted as her "strategist" — was calling and emailing her for payment. (7/15 Tr. pp. 47-48). She only paid Moore after bankruptcy counsel advised that the payment could be reviewed and challenged later. (7/15 Tr. pp. 47-49).
Because the funds were released as direct result of Attorney Leher's efforts, not Moore's (5/22 Tr. pp. 194-95), and because these were historical royalties that already belonged to Herrera-Edwards, Moore was not entitled to compensation under the terms of the Consulting Agreement. Beyond that, the Consulting Agreement, pursuant
Having learned of Herrera-Edwards' difficulties through Mr. Biddle and MRCI, Mr. Moore spent considerable effort informing himself about her financial affairs long before they met. Then, while her cash flow was severely diminished, he sold her on his "unique position" to find new money for her, based on the false statement that he could recover $500,000 or more very quickly. Mr. Moore had an undisclosed interest in the very MRCI lawsuit that was causing her historical royalties to be withheld. He failed to disclose his prior felony conviction. For these reasons, the Consulting Agreement was induced through fraud and is invalid. There is no entitlement to compensation thereunder or for rejection damages.
None of Mr. Moore's efforts provided any benefit to Herrera-Edwards or the bankruptcy estate. He did not find or recover any assets she did not already own or that her attorneys were not working to recover. Moore's "treasure map" is little more than a theatrical prop. Mr. Leher's efforts were the necessary and sufficient cause of the release of her escrowed royalties.
Mr. Moore was never appointed by the Court, not because of false promises by Herrera-Edwards or her attorneys, but because of the unreasonable terms of compensation he demanded. His efforts actually undermined the administration of the estate.
For these reasons, all of Mr. Moore's claims will be disallowed, with prejudice. Judgment will be entered for the debtor on all counts of her complaint; judgment will be entered against Mr. Moore on his counterclaim.
DONE and ORDERED in Chambers at Tampa, Florida, on January 29, 2015.
