      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ALBERT M. GRETO,                            )
                                            )
       Plaintiff,                           )
                                            )
              v.                            )
                                            )   C.A. No. N17C-01-436 CLS
JOSEPH L. MESSA, JR &                       )
ASSOCIATES, P.C. and JOSEPH                 )
MESSA, JR., JENIMAE                         )
ALMQUIST ENGELBRECHT,                       )
RICHARD JOHN HELENIAK                       )
and LEE DAVID ROSENFELD,                    )
                                            )
       Defendants.                          )
                                            )



                         Date Submitted: May 18, 2018
                           Date Decided: July 23, 2018


                                 On Defendants’
                         Motion for Summary Judgment.
                               GRANTED, in part
                             and DENIED, in part.


                                     ORDER
      This action arises out of a claim for breach of contract. Plaintiff Albert M.

Greto (Greto) alleges that he contracted to serve as Delaware counsel for the Messa

& Associates Law Firm (Messa Firm) in several matters before Delaware Courts.

The complaint was filed in January 2017. Defendants filed this Motion for Summary
                                        1
Judgement arguing Greto’s claims are barred by the statute of limitations and

individual Messa Firm associates cannot be held individually liable for actions taken

as agents or employees of the Messa Firm.

                                    Background

      In late 2010, Greto was contacted by Richard Heleniak from the Messa Firm

to serve as Delaware counsel for two cases pending before the this Court. 1 Greto

was substituted as Delaware counsel on January 5, 2011 for the consolidated action

of these two cases.2 Greto served as counsel for at least two actions filed in Delaware

Courts for which Messa attorneys were admitted on a pro hac vice basis.3 Sometime

in 2013 the relationship began to sour and Greto sought to discontinue the

relationship with the Messa Firm and its various associates. Greto now seeks

payment for his representation in these matters.

                                   Standard of Review

      The Court may grant summary judgment if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving




1
  The two cases indicated by Defendant Heleniak were C.A. Nos. N09C-10-202
EMD and N10C-03-288 PLA
2
  See transaction number 35204275 C.A # N09C-10-202 EMD
3
  Morales v. Camarco, and Dina Rosh v. Lane Bryant
                                        2
party is entitled to summary judgment as a matter of law.”4 The moving party bears

the initial burden of showing that no material issues of fact are present.5 Once such

a showing is made, the burden shifts to the non-moving party to demonstrate that

there are material issues of fact in dispute.6 In considering a motion for summary

judgment, the Court must view the record in a light most favorable to the non-

moving party.7 The Court will not grant summary judgment if it seems desirable to

inquire more thoroughly into the facts in order to clarify the application of the law.8

                                    Parties Assertions

      Plaintiff Greto claims he served as Delaware counsel for the Messa Firm in

four cases before Delaware Courts. Two of these cases were before this Court and

two cases were before the United States District Court for the District of Delaware.

Greto claims the parties entered into an agreement for each case whereby he would

be reimbursed for all costs and expenses related to work as Delaware counsel

incurred on behalf of the Messa Firm. Greto claims breach of contract, unjust

enrichment, and quantum meruit for each of the four cases for which he served as




4
  Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
5
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
6
  Id. at 681.
7
  Burkhart, 602 A.2d at 59.
8
  Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods.,
Inc., 2006 WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).
                                          3
Delaware counsel. The claims are leveled at the Messa Firm and the respective

Messa attorneys admitted pro hac vice for each individual case.

         Defendants have denied that Greto was Delaware counsel for the four cases

before Delaware Courts. Defendants also deny contracting with Greto, and dispute

that any fees are owed to Greto. Defendants move for summary judgment asserting

Greto’s claims are barred by the statute of limitations and that the Messa attorneys

at all times were acting as agents or employees of the Messa Firm.

         In response to this motion Plaintiff has submitted correspondence from

Defendant Messa showing that an agreement for payment existed, the terms of which

seem to be contradictory. In a letter dated April 15, 2014, Defendant Messa states

Greto could expect his “reasonable bills (for billable time) [would] be paid at the

time the matters [were] concluded.”9 The letter seems to indicate that payment

would be made regardless of outcome. A second letter dated April 23, 2015, appears

to contradict this stating Greto would receive contingency fees for contingency

cases.10

         Additionally, Plaintiff responds that individual Defendants Messa, Heleniak,

and Rosenfeld are partners in the Messa Firm, a professional corporation, and




9
    Pl. Resp. Ex. A at 2
10
     Pl. Resp. Ex. B
                                           4
therefore may be held individually liable for the debts of the firm. Plaintiff concedes

Defendant Almquist is not a partner in the Messa Firm and summary judgment is

proper as to her as an individual.

                                         Discussion

      This Court has repeatedly held “a cause of action for breach of contract

accrues at the time of the breach.”11 In the instant case Greto claims to not have

been paid for services rendered under the several agreements entered into. The

letters from Defendant Messa indicate the Messa Firm would only perform its

contractual obligation to compensate Greto upon conclusion of a case. Plaintiff has

submitted evidence reflecting the following termination dates for three of the cases

in question: March 19 and 25 2015, and February 26, 2016. The Complaint in this

case was filed on January 30, 2017, two years after the earliest date provided by

Plaintiff and well within the three-year statute of limitations applicable under 10 Del.

C. §8106.

                      The Messa Firm’s Organizational Structure

      Defendants cite Grand Ventures, Inc. v. Whaley in support of their argument

that “liability for an agent's culpable conduct imputes to the principal if the act falls



11
  Nardo v. Guido DeAscanis & Sons, Inc., 254 A.2d 254, 256 (Del. Super. Ct.
1969).
                                      5
within the scope of the agent's authority.”12 Plaintiff cites Grand Ventures for the

opposite proposition that an agent may be held independently liable for actions taken

in his capacity as an agent.13 Additionally, Plaintiff offers Chaiken v. Employment

Sec. Comm'n for the notion that in partnership partners may be held personally liable

for the firm’s debts.14

      In Grand Ventures an insured sought damages for breach of contract and fraud

against their insurance agency and their individual insurance agent.15 The Court

upheld a jury’s finding that a traditional principal/agent relationship existed between

the individual agent and the insurance agency.16 That finding by the jury imputed

liability for the agent’s negligence to his principal.17 The Court also upheld the

jury’s finding that the agent remained individually liable for punitive damages for

fraud.18 The present case is distinguishable from Grand Ventures in two respects;

that the named Defendants are alleged to be partners in the Messa Firm, and that




12
   Grand Ventures, Inc. v. Whaley, 622 A.2d 655, 665 (Del. Super. Ct. 1992), aff'd,
632 A.2d 63 (Del. 1993)
13
   Id. at 666
14
   Chaiken v. Employment Sec. Comm'n, 274 A.2d 707, 710 (Del. Super. Ct. 1971).
15
   Grand Ventures. at 656.
16
   Grand Ventures, at 657
17
   Id.
18
   Id.
                                        6
Plaintiff has not sought punitive damages against any of the individually named

Defendants.19

         Plaintiff is correct that under a traditional partnership agreement partners may

be responsible for partnership debt. However, the title of “partner” in a law firm

may belie the firms organizational structure as something other than a simple

partnership.

         Pennsylvania law provides several different organizational options for law

firms ranging from limited partnerships to professional corporations. Delaware law

permits formation of similar organizations which carry their own nuances for

consideration by the Court. These statutory creatures are of little significance to the

layperson, but impose varying degrees of personal liability for partners, directors,

and shareholders. There remains a question of fact as to the organizational structure

of the Messa Firm which must be resolved before granting summary judgment in

favor of the individually named Defendants Joseph Messa, Jr., Richard John

Heleniak, and Lee David Rosenfeld. Plaintiff does not oppose summary judgment

in favor of Defendant Jenimae Almquist Engelbrecht.




19
     Pl. Resp. at 2
                                             7
                      Contractual Obligations of the Messa Firm

      Plaintiff has alleged claims of breach of contract, unjust enrichment, and

quantum meruit. These claims arise from the relationship where Greto rendered

services under an agreement with members of the Messa Firm. Delaware courts

“have consistently refused to permit a claim for unjust enrichment when the alleged

wrong arises from a relationship governed by contract.”20 Viewing the record in a

light most favorable to Greto it is clear his claims fall within the scope of either

breach of contract or quantum meruit thus nullifying Greto’s claim of unjust

enrichment.

      Greto’s quantum meruit claims survive Defendant’s motion. This Court has

consistently held that quantum meruit:

            “is a quasi-contractual remedy by which a plaintiff, in the
      absence of an express agreement, can recover the reasonable value of
      the materials or services it rendered to the defendant. [A] party [can]
      recover the reasonable value of his or her services if: (i) the party
      performed the services with the expectation that the recipient would pay
      for them; and (ii) the recipient should have known that the party
      expected to be paid.”21




20
  Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010).
21
  Abacus Sports Installations, Ltd. v. Casale Const., LLC, 2012 WL 1415603, at
*2 (Del. Super. Ct. Feb. 14, 2012) (Internal citations omitted.)
                                          8
      It appears there are material facts remaining at issue before the Court. There

are unresolved questions related to the contractual relationship between the parties

and as to the organizational structure of the Messa Firm.

      For the foregoing reasons, Defendant’s Motion Summary Judgment is GRANTED,

in part, and DENIED, in part. Defendant’s Motion Summary Judgment as to Jenimae

Almquist Engelbrecht and the unjust enrichment claims is GRANTED.

      IT IS SO ORDERED.




                                                       /s/ Calvin L. Scott_____
                                                    Judge Calvin L. Scott, Jr.




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