DECISION AND ORDER
Joyce A. Wheeler, Justice.
Pending is Troubh Heisler's (TH) motion for summary judgment in this action regarding the division of attorney's fees received pursuant to a contingent fee in a medical malpractice lawsuit (" Paige action or lawsuit"). According to TH, the parties entered into a written contract in February 2009 (" 2009 Agreement or MOA") that is unambiguous and obligates the defendants to pay TH 33% of any fee received by them on account of the Paige lawsuit. TH asserts that Lilley received $172, 906.86 in attorney's fees, paid John Flynn $50, 000 in legal fees for the Paige action but that neither Lilley nor Flynn has paid the 33% of those fees owed to TH pursuant to the 2009 Agreement. TH relies, in part, on the court's decision in Troubh Heisler, PA v. Daniel Lilley, P.A., et al ., Docket No. CUM-CV-2012-103, in which the court found that the defendants Lilley and Flynn breached the 2009 MOA with TH involving another lawsuit.
Flynn filed an opposition and continues to contend that the Separation Agreement between him and Troubh Heisler goes part-and-parcel with the Memorandum of Agreement executed by him, Troubh Heisler and Daniel Lilley (" Lilley"). Flynn contends the two documents form an integrated agreement: the return of Flynn's capital account and the fee sharing in cases leaving Troubh Heisler were part of the same negotiations and integral parts of the same agreement, even though Lilley was not a party to the Separation Agreement. Flynn argues there are material facts at issue concerning his capital account that prevent summary judgment with respect to the MOA.
Lilley filed an opposition on the basis that James Howaneic's separate motion for summary judgment is pending and argues that Lilley can not be responsible to pay a referral fee to both TH and Howaniec. Lilley cannot owe 30% to Howaniec and 33% to TH. According to Lilley, the Howaniec claim must be resolved before TH's claim can be resolved. Howaniec has a separate action pending before this court and his claims against Flynn and Lilley are resolved today.
STATEMENT OF UNDISPUTED FACTS
The parties' statements of material facts and applicable summary judgment law permit the court to find the following undisputed facts, unless stated otherwise.
From November 12, 1996 through January 31, 2009, Flynn conducted his practice at TH. (THSMF ¶ 3.) On or about January 2002, TH undertook the representation of a medical malpractice plaintiff, Pam Paige. William McKinley was the first attorney to represent Paige at TH. Shortly thereafter, Flynn took on the representation of Paige while he was at TH.
On or about January 31, 2009, Flynn resigned from TH and entered into an employment arrangement with Lilley. (THSMF ¶ 4.) Prior to Flynn's resignation from TH, Flynn became the primary attorney working on the Paige case for TH. When Flynn left TH to practice with Lilley, the client Paige and her case went with Flynn. (THSMF ¶ 7.)
On February 5, 2009, TH, Flynn and Lilley executed the MOA related to several cases that went with Flynn at the time of his transition to Lilley, including the Paige action. (SMF ¶ 8.) The MOA states that for those clients who decided to have their cases transferred to Lilley with Flynn,
it is the parties' intention that Flynn and Lilley will pay a referral fee to TH if and when any legal fees are paid to Flynn and/or Lilley.
For each case, the referral fee paid to TH will be equal to a percentage of the total fees received by Flynn and/or Lilley on that case. The percentage referral fee for each case is listed in the right-hand column of the attached page.
(SMF ¶ 11.) For the Paige action, the amount shown on the attached page to the MOA for the referral fee to be paid to TH is 33% of the total fees received by Flynn and/or Lilley on that case. (THSMF ¶ 11.)
Flynn successfully tried the Paige case while at Lilley's office and, after verdict and with court approval, Lilley and Flynn received a total fee in the amount of $172, 906.86. (THSMF ¶ 10.) Defendants have reimbursed TH for costs but have not paid TH the referral fee of 33% of $172, 906.86, that remains due and owing. (THSMF ¶ 13.) The fees were collected through Lilley's office. Flynn, who has since departed from Lilley's office, was paid by Lilley $50, 000 for his share of the attorney's fees in the Paige lawsuit. Flynn ...