Burton v. State

Decision Date24 February 2022
Docket Number356195
PartiesDANNY BURTON, Plaintiff-Appellee, v. STATE OF MICHIGAN, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Before: Cavanagh, P.J., and Jansen and Riordan, JJ.

Riordan, J.

This case arises under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq. Defendant appeals as of right the judgment of the trial court awarding plaintiff attorney fees of $10, 000 under MCL 691.1755(2)(c) of that act.[1] The issue before us is whether the framework set forth in Pirgu v United Servs Auto Ass'n, 499 Mich. 269 884 N.W.2d 257 (2016), for calculating reasonable attorney fees applies to such fee determinations under the WICA. We conclude that it does. Accordingly, we vacate the trial court's judgment and remand to that court for further proceedings.


In 1987, plaintiff was convicted of first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, in connection with the shooting death of Leonard Ruffin. He was sentenced to serve terms of life in prison for the murder conviction and two years for the felony-firearm conviction. In 2011, a nonprofit organization that provides investigative support to wrongfully convicted individuals began investigating plaintiff's case. Attorney Solomon Radner assisted the investigation. It was eventually proven that plaintiff is actually innocent of the crimes for which he was wrongfully convicted and, in December 2019, the Wayne Circuit Court entered a stipulated order providing that "Mr. Burton's convictions and sentences in this matter are hereby vacated, and all related charges are hereby dismissed."

In January 2020, plaintiff commenced the instant action under the WICA, which provides that a wrongfully imprisoned individual who satisfies the statutory requirements therein is entitled to compensation from defendant.[2] Radner also represented plaintiff in the WICA action. In June 2020, the Court of Claims entered a stipulated order awarding plaintiff compensation of $1, 612, 646.28. With regard to statutory attorney fees under MCL 691.1755(2)(c) for a successful WICA plaintiff, the order stated as follows:

The parties shall submit to the Court a stipulated order concerning reasonable attorney fees and costs under MCL 691.1755(2)(c) within thirty (30) days of the date of entry of this order. If the parties do not present such a stipulated order to the Court within thirty (30) days, this Court shall set this matter for a hearing to determine the amount of reasonable attorney fees and costs under MCL 691.1755(2)(c), and the Court may in its discretion require the submission of legal memoranda in support of the parties' respective positions.

In August 2020, plaintiff filed his motion for reasonable attorney fees of $50, 000, the statutory limit under MCL 691.1755(2)(c)(iii). In an accompanying brief, plaintiff explained that Radner expended substantial time obtaining his release from prison, but only expended about seven hours on the "WICA case" itself because defendant agreed that he was entitled to compensation. Plaintiff further explained that he and Radner entered into a contingency agreement before the instant action was filed, under which Radner would apparently be entitled to "the lesser of $50, 000 or 10% of the total amount awarded" to plaintiff.[3] Plaintiff argued that the trial court should award him $50, 000 in attorney fees because the contingency agreement was "reasonable" in light of Radner's efforts to establish his innocence in the underlying criminal case.

Defendant responded that the proper calculation of "[r]easonable attorney fees" under MCL 691.1755(2)(c) requires application of the principles set forth in cases such as Pirgu and Smith v Khouri, 481 Mich. 519; 751 N.W.2d 472 (2008), which essentially provide that such fees are determined by multiplying the reasonable number of hours expended on the case with a reasonable hourly rate, subject to adjustment through consideration of certain relevant factors.[4]Defendant argued that under MCL 691.1755(2)(c), only those hours expended in the WICA action itself were compensable, not the hours expended in the underlying criminal case. Defendant contended that the trial court should deny plaintiff's request for attorney fees in its entirety because he failed to apply the Pirgu framework.

In October 2020, the trial court entered an order allowing plaintiff to produce a record establishing his entitlement to attorney fees:

Plaintiff's counsel has filed a request for attorney fees of 50, 000 [sic], citing a contingency fee arrangement with his client. Counsel has declined to attach a billing statement, an affidavit averring the hours invested in this litigation, his customary billing rate, specific years of experience, locality rates, or any information upon which this court may determine a reasonable fee award, other than the existence of a contingency fee agreement. He has not attached even that document. Based upon this filing the Court could exercise its discretion and make no award. However, the Court will allow Plaintiff's counsel to supplement his papers on or before October 17, 2020, with any supplemental responses due by October 27, 2020.

In response, plaintiff filed a supplemental brief that summarily addressed the factors identified by the trial court but only attached minimal supporting documentation to his brief. Defendant again asked the trial court to deny plaintiff's request for attorney fees in its entirety because he failed to satisfy his burden of establishing entitlement to those fees. However, the trial court once again allowed plaintiff an opportunity to produce a record:

Per the Court's October 8th, 2020 Order, plaintiff's counsel was allowed to supplement his papers on or before October 17, 2020, with any supplemental responses due by October 27, 2020. The Court has reviewed the papers filed and finds that the Plaintiff has failed to address the Lodestar factor [sic] or present any record of hours expended in this matter despite this court's earlier order. If the Plaintiff fails to address the Lodestar factors and offer records of hours expense by Monday, November 16th, 2020, the court will disallow all attorney fees.

Plaintiff promptly filed his second supplemental brief as allowed by the trial court, explaining that a straightforward application of the lodestar method provided for attorney fees of $7, 078.50.[5] However, plaintiff argued, the trial court should nonetheless award him attorney fees of $50, 000 because Radner's work on the underlying criminal case was a "special and rare circumstance[]." Defendant responded that plaintiff was not entitled to any attorney fees because he consistently failed to meaningfully apply the Pirgu framework, or alternatively, that he was only entitled to attorney fees of $1, 099.

The trial court ultimately ruled that plaintiff was entitled to attorney fees of $10, 000, reasoning as follows:

Plaintiff has been afforded two opportunities to perfect his prayer for a $50, 000.00 fee. While plaintiff avers the Lodestar factors are inapplicable, he has admitted that using what he, as an officer of the court, states is his $450.00 hourly fee, yields a product of $7, 078.50. This would account for approximately 16 hours, (15.73) hours, invested on this matter prior to settlement. Counsel has stated that he believes this is the "rare" and exceptional case warranting an hourly rate of over $3, 000.00 per hour or a fee equal at this hourly rate for over seven times the hours actually invested in this case. He has stated that if an evidentiary hearing were held, he could establish the merit on this enhancement. He has not, however, filed a Motion for such a hearing.
This court values the expertise of counsel for both parties. HOWEVER, AN ENHANCEMENT OF THIS MAGNITUDE IS BEYOND RARE, IT IS NEARLY UNPHATHOMABLE [sic]. The court, however, will extend counsel the opportunity to request such a hearing accompanied by a witness list on or before Friday, December 11, 2020, or accept this court's award of $10, 000.00.

Plaintiff did not request such a hearing, apparently accepting the attorney fees of $10, 000. Defendant, however, moved for reconsideration, arguing that plaintiff artificially inflated the number of hours that Radner worked on the WICA action by repeatedly failing to properly support his request for attorney fees with legal analysis and documentation, thereby extending the litigation. The trial court denied the motion.

Defendant now appeals, arguing that the trial court erred by awarding attorney fees to plaintiff without applying the Pirgu framework. According to defendant, plaintiff only is entitled to attorney fees in the amount of $466. Plaintiff has responded, arguing that the Pirgu framework does not apply to an award of "[r]easonable attorney fees" under MCL 691.1755(2)(c) and that instead, the contingency agreement between plaintiff and Radner should govern the award.


"Issues of statutory interpretation are reviewed de novo." City of Riverview v Sibley Limestone, 270 Mich.App. 627, 630; 716 N.W.2d 615 (2006). In addition, "[w]e review a trial court's determination of the reasonableness of requested attorney fees for an abuse of discretion." Zoran v Twp of Cottrellville, 322 Mich.App. 470, 475; 913 N.W.2d 359 (2017).


Before the WICA became effective on March 29, 2017, "people who were wrongfully imprisoned by the state of Michigan had no recourse against it for compensation" because the state was protected by sovereign immunity. Sanford v Mich 506 Mich. 10, 15; 954 N.W.2d 82 (2020). Thus, "[t]he WICA is an express waiver of the state's sovereign...

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