Lawyer mistakenly filed 'verbatim copy' of opponent's brief, leading to loss for Romantics band member
Bassist Mike Skill performs with the Romantics during the Little Stevens Underground Garage concert poolside at the Seminole Hard Rock Hotel and Casino on April 2, 2006, in Hollywood, Florida. (Photo by Ralph Notaro/Getty Images)
A trial court did not abuse its discretion when it required a member of the rock band the Romantics to pay triple damages after his new attorney filed a “verbatim copy” of the opponent’s brief by mistake, the Michigan Court of Appeals has ruled.
The appeals court ruled against the Romantics guitarist Mike Skill in a lawsuit alleging that he wrongly diverted royalty payments to himself.
Law360 has coverage.
The trial judge had ordered Skill to pay triple damages of more than $232,300, as requested by the plaintiffs in their motion for summary disposition. The appeals court affirmed in a Feb. 29 unpublished opinion.
Skill co-wrote the song “What I Like About You,” according to Law360.
Skill’s lawyer intended to file an opposition to the plaintiff’s motion for summary disposition, the appeals court said. Instead, the June 2022 brief was a cut-and-paste of the plaintiff’s brief in support of summary disposition, signed by Skill’s lawyer, who was not named in the opinion.
The new attorney said a paralegal had filed the wrong brief. It was filed on the extended deadline day for a response to the summary disposition request. Skill’s lawyer tried to file an amended brief the next day, but the trial judge apparently rejected it.
The judge granted summary disposition to the two plaintiffs—a company formed to manage business affairs for the band known as Master Beat Inc. and fellow band member Walter Palamarchuk, who goes by the stage name Wally Palmar.
The trial court reasoned that it could reject the new brief and award summary disposition to the plaintiffs based on timely filings before the court. The trial judge also said evidence established Skill’s liability for conversion, breach of fiduciary duty and unjust enrichment.
Palamarchuk was president of Master Beat, and Skill was secretary-treasurer. The company had contractual agreements requiring the payment of royalties to Master Beat, which would then distribute royalties to past and present band members under various contractual agreements.
Skill thought that he was entitled to royalties without the money first passing through Master Beat, and he took steps to divert royalties to himself in late 2020, the suit alleged.
There is some evidence, the appeals court said, that Skill apparently received about $26,700 in royalties directly from Sony Music Publishing and $30,000 in royalty payments from K-Tel International before Master Beat became aware of it. The evidence, however, isn’t entirely clear from the record, the appeals court said. There is also some evidence that Skill withdrew $20,000 from a bank account belonging to Master Beat in July 2021, thinking that he was entitled to the money.
The lawyer who filed the wrong brief had taken over in May 2022 from a previous lawyer who sought to withdraw on the alleged ground that Skill had not paid his legal bills. The new lawyer blamed the filing mistake on the short time frame between the time that she came aboard and the due date for the response, on her own illness as the deadline approached, and on her paralegal’s failure to file the brief prepared by Skill’s former lawyer as instructed.
On the merits, Skill’s lawyer argued that he could not convert funds that already belonged to him.
“Under these circumstances,” the appeals court said, “defendant has not demonstrated that the trial court abused its discretion by declining to permit the filing of a corrected brief after the deadline imposed by the scheduling order had passed. … Furthermore, on the record before the trial court in light of the lack of a properly and timely filed responsive brief, the trial court did not err by granting plaintiffs’ motion for summary disposition.”
