concurring.
I concur with Judge Wells and vote to reverse the judgment entered by the district court and remand for the court to enter a judgment for plaintiff. In my opinion, the facts found by the trial judge dictate a conclusion that Trimpi contracted with plaintiff to pay plaintiff if it would advance the funds for Simpson to save his home. Any other result would ignore the previous decision of this Court and would be a travesty of justice.
Judge Martin seems to indicate that the trial judge squarely found and concluded that Trimpi was acting as an agent for Simpson when he, Trimpi, entered into the contract with Forbes Homes. I cannot find such an emphatic finding of fact in the record and if the trial judge intended to make such a definitive finding, in my opinion, the evidence does not support it. The record is replete, of course, with evidence and findings that Trimpi and Simpson had an attorney-client relationship with respect to Simpson’s personal injury and social security claims, but there is no evidence in the record that Trimpi purported to represent Simpson when he negotiated and entered into a contract with Forbes Homes regarding payments to be made on Simpson’s home. Trim-pi himself testified that he insured the payment. Cole testified that Forbes would make the payments if Trimpi would promise to reimburse Forbes for such payment and would write Forbes a letter to that effect. When Cole told Trimpi to write him a letter regarding the matter, Trimpi sent him a letter in which he stated, “If you do not hear from us within ten days from receipt of this letter, you may assume that Mr. Simpson has given us the authority to make such payment to you.” This statement related solely to Trimpi’s making payment to Forbes Homes from proceeds of Simpson’s personal injury claim. It certainly had nothing to do with obtaining Simpson’s agreement that Trimpi would make payments himself to Forbes Homes. Trimpi was at all times in a position to protect his own interests. Forbes was at all times at the mercy of the lawyer.
I vote to reverse and remand for entry of judgment for plaintiff.