February 13, 2019 at 4:55 p.m.
Doctor requests return of bail money in toddler death case
Doctor requests return of bail money in toddler death case
By Heather Schaefer and Jamie Taylor-
In the motion, Dr. Trung T. Tran argues he is entitled to the bail money ($50,000 minus funds awarded to the boy's mother, Lori Edwards, as restitution) because there was no valid assignment of bail in the case.
An attorney for Tran's former wife, Ellen Tran, has objected to the doctor's motion arguing the funds were properly transferred to his firm's trust account as payment for services rendered as agreed upon when the firm took on Mrs. Tran as a client.
Ellen Tran, 30, was convicted of first-degree reckless homicide Oct. 25 following a four-day trial in which the state argued she caused her 20-month-old stepson, Avery Edwards, to suffer fatal brain trauma. Judge Patrick O'Melia later sentenced her to 15 years initial confinement followed by seven years extended supervision.
According to court records, Edwards became unresponsive April 14, 2017 while with his father and stepmother in Newbold for a court-ordered visitation. He died several hours later at a hospital in Marshfield.
Dr. Tran is also facing charges in connection with his son's death.
He is accused of child abuse (failure to act to prevent bodily harm) and neglecting a child (consequence is death), both felonies. The state has alleged that the doctor was aware his wife posed a threat to his son and failed to take action to protect the boy.
Tran is set to stand trial on those charges in September. If convicted, he faces a maximum of 31 years in prison.
According to court records, the dispute over the bail money is tied to a drafting error. According to a brief filed by Ellen Tran's attorney Jonas Bednarek, both Trans signed an agreement in July 2017 that included the following: "Trung Tran agrees to sign an Assignment of Bail assigning the monies posted as bail on case number 2017 CF 102 in the amount of $50,000 to Hurley, Burish & Stanton, S.C. Should the bail money not be returnable to Hurley, Burish & Stanton, S.C. , at the conclusion of the representation, Trung Tran agrees to be personally responsible for this amount."
An irrevocable assignment of bail bond was drafted, and both Dr. and Ms. Tran signed it on August 16, 2017, the brief continues, however, due to an error in drafting, the assignment reads "2017 CF 166," instead of "2017 CF 102," and it was filed in the second case instead of the first one.
Oneida County Case 2017CF166 is a bail jumping case filed against Ellen Tran after she allegedly had unauthorized contact with her young daughter at the 2017 Rhinelander Fourth of July Parade. The charge was dismissed after Tran was convicted of reckless homicide in 2017CF102.
"The error in the assignment was eventually spotted," according to Bednarek's brief. "On July 31, 2018, Attorney Bednarek sent a letter to Dr. Tran's counsel explaining the error, and requesting that Dr. Tran sign a corrected version. Dr. Tran did not respond, and has not signed the corrected assignment document. On November 7, 2017, Dr. Tran filed for divorce. Neither the Final Marital Settlement Agreement nor the Findings of Fact, Conclusions of Law and Judgment of Divorce (which ratifies and incorporates the Final Marital Settlement Agreement) mention the bail money. After Ms. Tran's sentencing in Oneida County Case No. 17 CF 102, the Clerk paid the bail moneys to Ellen Tran's counsel. The money has been held in Attorney Bednarek's firm's trust account pursuant to a January 7, 2019 letter from the Court. Dr. Tran now seeks the return of the bail money from Oneida County Case No. 17 CF 102 on the basis that 'there is no valid bail assignment in this case.'"
In the brief, Bednarek offers several grounds for the court to deny Dr. Tran's motion.
First, Bednarek argues Tran's motion for the return of the money breaches an "implied duty of good faith and fair dealing."
"Dr. Tran is a signatory to the fee agreement, which is unambiguously a contract for legal services," the brief states. "As such, he has a duty to act in a manner consistent with the implied duty of good faith and fair dealing. Under this implied 'duty of cooperation,' a party may commit a breach when it follows 'the letter but not the spirit of an agreement,' because otherwise courts would allow compliance with contracts that is in form, not in substance,'" and permit parties to "'accomplish[ ] exactly what the agreement of the parties sought to prevent.' Dr. Tran is attempting exactly such a maneuver: insisting that the letter of the assignment he signed, mistakenly drafted for the wrong case, should allow him to evade the responsibility he undertook with the fee agreement. The Court should see Dr. Tran's motion for what it is, and deny it on the basis that it seeks to frustrate the intent of the fee agreement."
Bednarek also argues that granting Tran's motion would amount to unjust enrichment.
"Attorney Bednarek and his firm represented Ellen Tran in two cases for over a year. In undertaking that work, they set a fee commensurate with the time, effort, and complexity of the case," the brief states. "The Trans agreed to pay that fee, and to offer, as security for that payment, an assignment of bail. There is no question that Attorney Bednarek and his firm did the work: Ms. Tran was represented at every stage of the proceeding. In short they conferred a benefit on Ms. Tran. The Trans certainly knew of this: they signed documents which both affirmatively requested the engagement, and which promised payment. Under these circumstances, it would be unjust to send Hurley Burish, S.C., away without compensation."
Finally, Bednarek argues Tran's motion is barred by the Doctrine of Unclean Hands.
"It is a venerable principle that a court will not lend its aid to relieve a party to a contract from the obligations incurred by its execution, if the party seeking the relief has been guilty of any reprehensible conduct directly related thereto," the brief states. "Here, Dr. Tran knowingly and expressly promised the $50,000 that he had paid in bail money to Ellen Tran's counsel. He signed an irrevocable transfer of bail, which, although it reflected an incorrect case number, indicates on its face the intent to secure the promise for payment of fees for legal services. When presented with a corrected transfer document, he did not protest or repudiate it, he remained silent. In fact Trung Tran never raised his purported revocation of his promise to transfer the bail money to Ms. Tran's counsel until after the case was over. Back in 2017, had Dr. Tran advanced the notion that his irrevocable consent to the transfer of bail money was, in fact, revoked, Ellen Tran's counsel could have dealt with the issue up front, and - if the Court deemed the consent no longer valid - could have sought other sources of payment or sought to withdraw for non-payment. Instead, Dr. Tran sat mute as Ms. Tran's counsel continued to advocate on her behalf. If it is the case that Dr. Tran believed his lawyer's October, 2017, letter revoked his consent to transfer the bail money, he has not been forthright about that fact. If he does not believe that, his motion is disingenuous. Either way, the Court should not grant it."
According to online court records, a hearing on the bail money dispute has not yet been scheduled.
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