JEFFREY BARON’S OBJECTION TO PROOF OF CLAIM NO. 11 OF RASANSKY LAW FIRM ANDALDOUS LAW FIRM –PAGE 1Gerrit M. PronskeState Bar No. 16351640Vickie L. DriverTexas Bar No. 24026886Christina W. StephensonState Bar No. 24049535PRONSKE & PATEL, P.C.2200 Ross Avenue, Suite 5350Dallas, Texas 75201(214) 658-6500 – Telephone(214) 658-6509 – TelecopierEmail: gpronske@pronskepatel.comEmail: vdriver@pronskepatel.comEmail: cstephenson@pronskepatel.comCOUNSEL FOR JEFFREY BARONIN THE UNITED STATES BANKRUPTCY COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISIONIn re: §§ONDOVA LIMITED COMPANY, § CASE NO. 09-34784-SGJ-11§Debtor. § Chapter 11JEFFREY BARON’S OBJECTION TO PROOF OF CLAIM NO. 11OF RASANSKY LAW FIRM AND ALDOUS LAW FIRMJeffrey Baron (“Baron”), a creditor and party in interest in this case, hereby files hisObjection to Proof of Claim No. 11 of Rasansky Law Firm and Aldous Law Firm (the"Objection"), and in support thereof respectfully represents as follows:I. JURISDICTION1. The Court has jurisdiction over the Objection pursuant to 28 U.S.C. §§ 157 and1334. Venue over the Objection is proper pursuant to 28 U.S.C. §§ 1408 and 1409. TheObjection is a core proceeding under 11 U.S.C. § 157(b)(2).II. FACTUAL BACKGROUND2. On July 27, 2009 (the “Petition Date”), the Debtor filed for bankruptcy protectionCase 09-34784-sgj11 Doc 269 Filed 02/22/10 Entered 02/22/10 18:47:03 DescMain Document Page 1 of 6JEFFREY BARON’S OBJECTION TO PROOF OF CLAIM NO. 11 OF RASANSKY LAW FIRM ANDALDOUS LAW FIRM –PAGE 2under chapter 11 of title 11 of the Bankruptcy Code.3. On September 17, 2009, the Court entered an order approving the appointment ofa chapter 11 trustee (Docket No. 98).4. The Court set the bar date for filing proofs of claim for all creditors other thangovernmental units as November 25, 2009 (the "Bar Date").5. Baron files this Objection pursuant to Section 502 of the United StatesBankruptcy Code (the “Bankruptcy Code”) and Rule 3007 of the Federal Rules of BankruptcyProcedure (the “Bankruptcy Rules”).III. OBJECTION TO CLAIM6. Pursuant to Section 502 of the Bankruptcy Code, Baron objects to Rasansky LawFirm and Aldous Law Firm’s (“Rasansky & Aldous”) Proof of Claim. 11 U.S.C.A. § 502(b)(1).Rasansky and Aldous filed a proof of claim on November 25, 2009 in the amount of$7,000,000.00, characterizing such claim as secured and attaching a heavily redacted Contractand Power of Attorney thereto. Baron asserts the Rasansky and Aldous claim for a$7,000,000.00 contingency fee against he and Ondova is unenforceable because Rasansky andAldous repudiated the parties’ existing contingency fee contract. Once repudiated, neitherRasansky nor Aldous ever obtained either any written agreement or secured a new written andsigned instrument with Baron delineating a second contingency fee relationship on behalf of heand/or Ondova. Finally, Baron objects to the Rasansky and Aldous claim upon the theory ofquantum meruit as unjustified as the work performed by them was not valuable and poor.7. A claimant’s Proof of Claim is deemed allowed unless a party in interest objects.11 U.S.C.A. § 502(a). A creditor is a party in interest. Id.; see also, Industrial Bank, N.A. v. CityBank, 549 U.S. 1019 (2005). An objection, upon filing, initiates a contested matter by notifyingCase 09-34784-sgj11 Doc 269 Filed 02/22/10 Entered 02/22/10 18:47:03 DescMain Document Page 2 of 6JEFFREY BARON’S OBJECTION TO PROOF OF CLAIM NO. 11 OF RASANSKY LAW FIRM ANDALDOUS LAW FIRM –PAGE 3the parties that litigation is required to determine the allowance or disallowance of a claim.Matter of Taylor, 132 F.3d 256, 260 (5th Cir. 1998). Once filed, the bankruptcy judge mayexamine the conscionability of a claim asserted against the estate and to disallow it if the claim iswithout lawful existence. In re Hinkley, 58 B.R. 339, 343 (Bankr. S.D.Tex. 1986).8. Section 101 of the Bankruptcy Code defines a “creditor” as an “entity that has aclaim against the debtor.” U.S.C.A. § 101(10)(A). “To be a creditor in bankruptcy, the debtormust owe a debt to the claimant.” In re Internet Navigator, Inc., 289 B.R. 133, 136 (Bankr. N.D.Iowa 2003); see also, In re Colonial Poultry Farms, 177 B.R. 291, 299 (Bankr. W.D. Mo. 1995);Diasonics v. Ingalls, 121 B.R. 626, 630 (Banrk. N.D. Fla. 1990). On or about April 12, 2009Rasansky and Aldous entered into a contingency contract with the Debtor, attached hereto asExhibit “A.” However, on April 16, 2009, a mere 4 days later, Rasansky and Aldous repudiatedthe contract by email. See Exhibit “B.” Therefore, such contract is not binding on the Debtorand any claims brought pursuant to such contract should be disallowed.9. For a contingent-fee contract to be enforceable, it must satisfy section 82.065 ofthe government code: “(a) A contingent fee contract for legal services must be in writing andsigned by the attorney and client.” Tex. Gov’t Code Ann. §82.065. The Texas DisciplinaryRules of Professional Conduct also require that a contingent fee agreement be in writing. Tex.Disciplinary R. Prof’l Conduct 1.04(d).10. In Texas, it is the movant’s burden to establish the existence of a contract suedupon. Howell v. Kelly, 534 S.W.2d 737, 739 (Tex. Civ. App.—Houston [1stDist.] 1976, no writ);see also, V.T.C.A. Government Code §82.065(a). “Repudiation” consists of actions by acontracting party that indicate said party is not going to perform a contract in the future. GroupLife & Health Ins. Co. v. Turner, 620 S.W.2d 670, 672 (Tex. Civ. App.—Dallas, 1981, no writ).Case 09-34784-sgj11 Doc 269 Filed 02/22/10 Entered 02/22/10 18:47:03 DescMain Document Page 3 of 6JEFFREY BARON’S OBJECTION TO PROOF OF CLAIM NO. 11 OF RASANSKY LAW FIRM ANDALDOUS LAW FIRM –PAGE 4That is, it is conduct which shows a fixed intention to abandon, renounce and refuse to perform acontract. Moore v. Jenkins, 211 S.W. 975, 976 (Tex. 1919). As the only written contractbetween the parties was repudiated by Rasansky and Aldous, no written contract remains underwhich Rasansky and Aldous may assert a claim. Therefore, the claim of Rasansky and Aldousshould be disallowed.11. Furthermore, after Rasansky and Aldous repudiated the contract with the Debtor,no further agreements were reached between the parties, written or otherwise, which wouldsupport Rasansky and Aldous’s claim. Therefore, no agreement existed between the parties thatRasansky and Aldous would perform work on a contingency basis for the Debtor. Thus, to theextent Rasansky and Aldous’s claim is based upon any alleged agreement between the partiesoutside of the repudiated contract, such claims should be disallowed.12. Finally, any work that was performed by Rasansky and Aldous was poorlyperformed and to the extent that Rasansky and Aldous are basing their claims on quantummeruit, such claims are not justified. Quantum meruit is an equitable theory of recovery which isbased upon an implied agreement to pay for benefits received. Heldenfels Bros., Inc. v. City ofCorpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). To recover under the doctrine of quantummeruit, Rasansky and Aldous must prove: 1) valuable services were furnished; 2) to Baron andOndova; 3) which were accepted by Baron and Ondova; and 4) under such circumstances asreasonably notified Baron and Ondova that Rasansky and Aldous, in performing such services,expected to be paid by the recipient. Id. (Emphasis added.)Baron asserts that Rasansky’s andAldous’ legal services were not valuable and in some cases have created substantial additional,unnecessary and costly litigation to both Baron and Ondova. Therefore, the Rasansky andAldous claim, to the extent they seek recovery of attorney’s fees pursuant to the doctrine ofCase 09-34784-sgj11 Doc 269 Filed 02/22/10 Entered 02/22/10 18:47:03 DescMain Document Page 4 of 6JEFFREY BARON’S OBJECTION TO PROOF OF CLAIM NO. 11 OF RASANSKY LAW FIRM ANDALDOUS LAW FIRM –PAGE 5quantum meruit, should be disallowed or, alternatively, significantly limited in view of theduration and quality of legal services rendered by them.13. Baron reserves the right to file a brief in support of this Objection. Baron furtherreserves the right to amend this Objection at any time to raise further affirmative defenses andcounterclaims to the claims of Rasansky and Aldous.WHEREFORE, PREMISES CONSIDERED, Baron requests that the Court enter an ordersustaining his objection to Rasansky and Aldous’s Proof of Claim and granting Baron such otherand further relief, general or special, at law or in equity, to which he may show himself justlyentitled.Case 09-34784-sgj11 Doc 269 Filed 02/22/10 Entered 02/22/10 18:47:03 DescMain Document Page 5 of 6JEFFREY BARON’S OBJECTION TO PROOF OF CLAIM NO. 11 OF RASANSKY LAW FIRM ANDALDOUS LAW FIRM –PAGE 6Dated: February 22, 2010Respectfully submittedBy: /s/ Gerrit M. Pronske____Gerrit M. PronskeTexas Bar No. 16351640Vickie L. DriverTexas Bar No. 24026886Christina W. StephensonTexas Bar No. 24049535PRONSKE & PATEL, P.C.2200 Ross Avenue, Suite 5350Dallas, Texas 75201Telephone: 214.658.6500Facsimile: 214.658.6509Email: gpronske@pronskepatel.comEmail: vdriver@pronskepatel.comEmail: cstephenson@pronskepatel.comCOUNSEL FOR JEFFREY BARONCERTIFICATE OF SERVICEI, the undersigned, hereby certify that on February 22, 2010 I caused to be served theforegoing pleading upon the service list attached hereto via the Court’s electronic transmissionfacilities and/or United States mail, first class delivery./s/ _Gerrit M. Pronske______Gerrit M. PronskeCase 09-34784-sgj11 Doc 269 Filed 02/22/10 Entered 02/22/10 18:47:03 DescMain Document Page 6 of 6![]()