COURT FILE NO.: DC-04-000594-00

DATE: 20060517

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ASSUNTA SUSAN PIACENTE, Plaintiff/Respondent on Appeal

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ZEPPIERI & ASSOCIATES, Defendant/Appellant

BEFORE: Justice Swinton

COUNSEL: Nicholas C. Tibollo, for the Respondent on Appeal

Gregory Gryguc, for the Appellant

HEARD at Toronto: May 15, 2006

E N D O R S E M E N T

[1] The Appellant, Zeppieri & Associates, appeals from the judgment of Deputy Judge Skolnik dated October 4, 2004, in which he ordered the Appellant to pay damages to the Respondent on Appeal/Plaintiff Mrs. Piacente of $6,000.

[2] The issue in this appeal is whether the Deputy Judge made a palpable and overriding error in relying on the testimony of Daniel Daly in reaching his decision.

[3] The Respondent was a client of the Appellant with respect to a hearing before the Ontario Insurance Commission. After a mediation on September 21, 1995, a settlement was reached in the amount of $15,250. The Respondent signed a release on October 16, 1995.

[4] The cheque for the settlement funds was made out to the Respondent, but Mr. Zeppieri endorsed her name on it and deposited the funds. On October 25, 1995, she received a cheque from the Appellant for $8,500. The evidence of the Appellant was that $6,000 was retained from the funds to pay down outstanding accounts of her husband with the Appellant and $837.28 was applied to her account for fees. The Appellant relied on an authorization signed by her on September 21, 1995 to indemnify the Appellant for accounts owing by her husband.

[5] The Respondent gave evidence disputing the payment, saying that she agreed to have the Appellant hold the funds in trust on condition that he help the couple obtain a $10,000 loan. No loan was obtained, and she then claimed the monies back. They were never paid.

[6] On October 25, 1995, the Appellant had obtained a default judgment against the Respondent’s husband for outstanding fees of $24,767.62 and costs of $323.00.

[7] A Notice of Garnishment was issued by the Appellant and served May 2, 1996 in the amount of $21,415.80. Subsequently, on the suggestion of Daniel Daly, Mr. Piacente’s new counsel, there were discussions between Mr. Piacente and Mr. Zeppieri about the amount owing to the Appellant. Around June 6, 1996, there was an agreement whereby the sum of $25,000 all inclusive would be paid to Mr. Zeppieri for past accounts and some further work on an appeal.

[8] On October 6, 1996, Mr. Daly wrote to the Appellant requesting payment of monies held back from the Respondent that were in the Appellant’s trust account. Mr. Zeppieri replied that there had been no overpayment in the matter.

[9] The Respondent subsequently launched a Small Claims Court action claiming the return of the $6,000 from her settlement funds. After a three day trial, the Deputy Judge found in her favour.

[10] The Deputy Judge found the Respondent, her husband, and Mr. Zeppieri to have given self-serving testimony and to have been less than forthright. He also rejected the evidence of Ms. Hamid, a secretary in the Appellant’s law firm. He went on to say that he found Mr. Daly to be a very credible and candid witness (at para. 34). He then based his decision on Mr. Daly’s evidence, saying at para. 35:

Mr. Daly stated that it was his understanding of the terms of the agreement between the Defendant and the Plaintiff and her husband that the amount of $25,000.00 in total would be owing. He went to great lengths to establish the basis of this belief. This was contrary to the Defendant’s allegation that $6,000.00 was taken from the settlement to pay the balance owing to the Defendant by the Plaintiff’s spouse. It supported the Plaintiff’s allegation that there was an agreement for a full and final settlement of $25,000.00 which the Defendant had previously received.

[11] Mr. Daly gave evidence that there was an agreement whereby Mr. Piacente would pay “a $25,000 all-inclusive one-time only payment” to Mr. Zeppieri “in full satisfaction” of all debts owed by him (Transcript, p. 25).

[12] The Appellant submits that the Deputy Judge erred in relying on Mr. Daly’s evidence as to the agreement of the parties and the payment of $6,000, as Mr. Daly became involved with the matter after the $6,000 had been taken from the settlement funds, and he had no personal knowledge of it. Essentially, the Appellant submits that the amount the firm claimed to be owing at the time of negotiations reflected the fact that $6,000 had been credited to the accounts. Therefore, the Appellant submits that the agreement that $25,000 would be paid in final settlement of Mr. Piacente’s accounts rested on the Appellant’s view that the $6,000 had been paid to reduce the accounts.

[13] The Deputy Judge made findings with respect to the credibility of all the witnesses. Relying on Mr. Daly’s evidence, which he found credible, he found that the parties had agreed that Mr. Piacente would pay $25,000 in full satisfaction of the debts owed by him. Therefore, he concluded that the $6,000 from the Respondent’s settlement funds should be repaid to her in order to avoid over-compensation of the Appellant.

[14] I am not satisfied that there was a palpable and overriding error by the Deputy Judge, nor that he misapprehended the evidence. He made findings of credibility with respect to the witnesses, and there was evidence before him on which he could reach his conclusion about the agreement. Therefore, the appeal is dismissed.

[15] Costs to the Respondent are awarded on a partial indemnity basis. While I appreciate the submission of the Respondent that there was extensive material to review in this appeal, it was not complex legally. Moreover, the amount in issue is not large, and the appeal is from the Small Claims Court. In the circumstances, a reasonable amount for fees is $3,500.00. Therefore, costs to the Respondent are fixed at $3,500 plus GST plus disbursements of $256.80.

Swinton J.

Released: May 17, 2006