Kimm v. Kyu Sung Cho
706 F. App'x 1
| 2d Cir. | 2017Background
- In April 2012 Kimm (attorney) sent an unsigned retainer agreement to Cho (and his company Dongbu) for defense in New Jersey litigation; the Agreement called for a $3,000 monthly retainer plus a rolling $10,000 monthly payment to be applied against litigation fees, with billed fees discounted 70% as billed periodically.
- Kimm represented Cho and Dongbu from April 2012 through November 2013 and received approximately $133,000 in payments from Cho.
- Some detailed litigation invoices were not produced to Cho until July 2013; Cho emailed in July 2013 disputing complex billing matters.
- Kimm sued Cho in federal court for breach of contract and for account stated; the district court granted summary judgment to Kimm on both claims and denied Rule 11 sanctions to Kimm on his cross-appeal.
- On appeal, the Second Circuit reviewed (1) whether the unsigned Agreement was enforceable, (2) the breach-of-contract claim, (3) the account-stated claim, and (4) the denial of Rule 11 sanctions.
Issues
| Issue | Plaintiff's Argument (Kimm) | Defendant's Argument (Cho) | Held |
|---|---|---|---|
| Enforceability of unsigned retainer | Conduct (performance and acceptance) shows assent to Agreement terms | No signed agreement; payment of monthly amounts does not prove assent to larger billed fees | Agreement enforceable: partial performance and acceptance show intent to be bound |
| Breach of contract (validity, understanding, reasonableness) | Agreement was clear, reasonable, and Cho understood and accepted terms | Cho lacked assent to fees beyond monthly amounts; disputed certain billed amounts | Affirmed: Agreement was fair, understood; summary judgment for Kimm on breach claim |
| Account-stated (whether Cho’s silence constituted assent) | Failure to timely object to invoices made them account stated | Cho timely objected in July 2013 (complex disputes), precluding assent | Vacated summary judgment on account-stated: factual dispute about timely, specific objection precludes finding of account stated |
| Rule 11 sanctions (denial reviewed) | Sought sanctions against Cho | Argued sanctions unwarranted | Affirmed denial: no abuse of discretion by district court |
Key Cases Cited
- Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363 (estoppel/unsigned agreement enforceable when objective evidence of assent exists)
- R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69 (partial performance and acceptance indicate a contract)
- Albunio v. City of New York, 23 N.Y.3d 65 (attorney retainer enforceability requires agreement be fair, reasonable, and understood)
- Whiteman, Osterman & Hanna, LLP v. Oppitz, 105 A.D.3d 1162 (account stated requires issuance of bill held without objection for unreasonable time)
- Navimex S.A. De C.V. v. S/S N. Ice, 617 F. Supp. 103 (post-objection supplementary statements do not establish account stated where underlying dispute exists)
- Walsh v. N.Y.C. Housing Auth., 828 F.3d 70 (summary judgment review standard)
- Simmons v. N.Y.C. Transit Auth., 575 F.3d 170 (use of in-district hourly rates in fee calculations)
- Ipcon Collections LLC v. Costco Wholesale Corp., 698 F.3d 58 (standard of review for denial of Rule 11 sanctions)
- Caisse Nationale de Credit Agricole-CNCA v. Valcorp, Inc., 28 F.3d 259 (Rule 11 abuse-of-discretion standard)