Cristini v. City of Warren

• Decision Date: 07 July 2014
• Docket Number: Case No. 07–11141.
• Citation: 30 F.Supp.3d 665
• Parties: Michael Louis CRISTINI, Plaintiff, v. CITY OF WARREN, Warren Police Department, Macomb County, Macomb County Prosecutor, Alan Warnick, and Alice Ingles, Guardian for Donald Ingles, in his Individual and Official Capacities, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

30 F.Supp.3d 665

Michael Louis CRISTINI, Plaintiff

v.CITY OF WARREN, Warren Police Department, Macomb County, Macomb County Prosecutor, Alan Warnick, and Alice Ingles, Guardian for Donald Ingles, in his Individual and Official Capacities, Defendants.

Case No. 07–11141.

United States District Court, E.D. Michigan, Southern Division.

Signed July 7, 2014.

Dennis A. Dettmer, Dettmer & Dezsi, Michael R. Dezsi, Paul W. Broschay, Thomas M. Lizza, Detroit, MI, for Plaintiff.

Jami E. Leach, John J. Gillooly, Detroit, MI, Michael S. Bogren, Plunkett & Cooney, Kalamazoo, MI, for Defendants.

OPINION AND ORDER ON MOTIONS TO DETERMINE ATTORNEY'S LIEN

DAVID M. LAWSON, District Judge.

Before the Court are cross motions filed by lawyers who represented plaintiffMichael Cristini at one time or another seeking a share of the attorney's fee generated by the settlement in this civil rights case.Cristini brought this lawsuit against the City of Warren, certain police detectives, and others after he was wrongfully convicted of rape.The issues raised by the motions parallel those in the related case involving Jeffrey Moldowan, who was charged in state court, convicted, and later exonerated along with Cristini.As in the Moldowan case, Cristini hired attorney Dennis Detmer to represent him.Detmer filed the case and conducted extensive work for about two-and-a-half years before he retired—temporarily, as it turns out.Detmer referred the Moldowan and Cristini cases to attorney Thomas Lizza, who was working at the time at the firm of Fieger, Fieger, Kenney & Giroux, P.C.(“the Fieger Firm”).The Feiger Firm signed a contingent fee agreement with Cristini, and in a separate agreement promised to pay Detmer a one-third referral fee.And as in the Moldowan case, Cristini fired the Feiger Firm and rehired Detmer to finish his case, along with attorneys Lizza, Paul Broschay, and Michael Deszi, who by then had left the Feiger Firm.Feiger was substituted out of the case and asserted a lien for fees and costs.It appears that the coasts have been reimbursed.

The Feiger Firm argues here, as it did in the Moldowan case, that it is entitled to the lion's share of the attorney's fee from the $1.5 million settlement.It repeats the arguments made in Moldowan and rejected earlier by this Court in that case, which was affirmed by the Sixth Circuit.Moldowan v. City of Warren,559 Fed.Appx. 435(6th Cir.2014).Predictably, the outcome here will be the same: the Feiger Firm will received a share of the fee based on quantum meruit, calculated using the lodestar method approved by the applicable Michigan cases.Presumably anticipating this outcome, the Feiger Firm has come up with an “estimate” of the amount of work performed on the Cristini file while it was at that firm.The Court heard testimony on that calculation from the Fieger Firm's witness and finds it unreliable.The better evidence of the work performed on that file while it was essentially parked at the Feiger Firm comes from the attorneys who actually did the work, who are the same lawyers who finished the job: Dettmer and the lawyers who worked on the case after they left the Feiger Firm.

I.

The case arises out of Jeffrey Moldowan's and Michael Cristini's convictions for rape and kidnaping.Both convictions were overturned and both Moldowan and Cristini were subsequently retried and acquitted of all charges.In approximately May 2004, Moldowan and Cristini retained Dennis Dettmer to file a civil rights lawsuit and signed a contingent fee agreement with him.Dettmer filed a complaint against the City of Warren and Detective Ingles on March 15, 2007, among others, alleging that the defendants withheld exculpatory evidence and engaged in malicious prosecution.

Dettmer represented Cristini from approximately May 2004 until January 2009 when he(temporarily) retired from the practice of law.During that time, Dettmer handled all of the discovery in the Moldowan and Cristini cases, which were conducted jointly for a period of time.Dettmer also resisted the defendants' motions for summary judgment in Moldowan and filed appellate briefs in the Sixth Circuit after the Warren defendants and defendantAlan Warnick sought interlocutory review on their qualified immunity claims.Discovery, pleadings, correspondence, and research in the two cases filled 35 banker boxes.Dettmer says he spent more than $50,000 in expenses litigating Cristini and Moldowan during that period.

Before retiring, Dettmer referred the Cristini and Moldowancases to Thomas Lizza, an attorney then employed by the Fieger Firm.Dettmer and Lizza signed a referral agreement in which Dettmer agreed to a twenty-five percent referral fee for the Cristini case and reimbursement of all his costs.Dettmer confirmed the referral in a January 17, 2009 letter to Cristini and informed Cristini that the Fieger Firm would ask him to sign a new fee agreement.Cristini signed a contingency fee contract with the Fieger Firm on April 24, 2009, in which he agreed that the Fieger Firm would receive one-third of the net recovery.Paragraph 11 of the contingency fee agreement included this language:

In the event the Firm is discharged by the Client(s) without cause or in the event that the Firm terminates its services due to some occurrence which is not the fault of the Firm's [sic], the contingency fee portion of ths [sic] agreement will be held for naught and that the Firm will be entitled to a fee based on quantum meruit.It is specifically agreed by the Client(s) that the Firm shall have a lien against any sum recovered to the extent of said costs or expenses as indicated in Paragraph 4 herein which are incurred by the Firm, and that said lien is to be granted a preference, to the extent permitted by law, over any other liens or obligations which may be satisfied from said recovery.

Contract for Legal Representation, dkt. # 203–6, at 2.

In January 2009, Lizza replaced Dettmer as counsel of record, and on February 19, 2009, Paul Broschay filed a notice of appearance.Soon thereafter, the City of Warrendefendants filed a motion to stay Cristini pending the Sixth Circuit decision on the interlocutory appeals in Moldowan.Judge Anna Diggs Taylor, to whom the case was assigned originally, granted the defendants' motion to stay the case on February 24, 2009.

On October 25, 2010, Lizza filed a motion to lift the stay after the Sixth Circuit issued its decision in Moldowan, which Judge Taylor granted on November 18, 2010.On November 22, 2010, the case was reassigned to the undersigned after Judge Taylor retired.The Court held a status conference on January 11, 2011, which Lizza and Broschay attended on behalf of Cristini.There was no activity in the case between January and May 2011(except for a stipulation dismissing defendantMaureen Fournier), because Cristini was being prosecuted in another criminal case, and the parties wanted to await the outcome, which could have shed light on whether the present case was worth pursuing.Cristini was acquitted in that case, and this lawsuit emerged from its dormancy when the Court held a status conference on May 12, 2011.

In that same month, Cristini discharged the Fieger Firm after many of their litigation attorneys (including Lizza, Broschay, and Michael Deszi) decided to leave the firm.Cristini then re-engaged the services of Dettmer, who agreed to come out of retirement to assist with the Cristini litigation.Dettmer retained the assistance of Broschay, Lizza, and Dezsi, who had all left the Fieger Firm by that time.The Court substituted Dennis Dettmer and the law firm Dennis A. Dettmer, PLLC as counsel of record in the place of the Fieger Firm on June 9, 2011; Broschay and Dezsi filed notices of appearance on behalf of Cristini on June 29, 2011.

The Fieger Firm filed its notice of lien on June 20, 2011.

The activity for the plaintiff in this file after the Fieger Firm's exit included responses to the defendants' motions for summary judgment, appellate briefs in the Sixth Circuit in response to the defendants' interlocutory appeals, retention of experts, further discovery, preparation for trial, and participation in mediation and settlement conferences with the Court.

On June 11, 2012, plaintiff settled his claims against defendantsMacomb County and the Macomb County Prosecutor, and the Court entered an order dismissing the case against them with prejudice.Likewise, the plaintiff reached a settlement with defendant Warnick, reflected in a consent judgment entered on December 7, 2012.

On December 27, 2013, the parties settled the case with the Warren defendants.The Court dismissed the case with prejudice, and retained jurisdiction to adjudicate the disputed over the amount of the attorney's lien filed by the Fieger Firm.

On January 10, 2014, the plaintiff filed a motion to determine the lien [dkt. # 183] and, on February 6, 2014, the Fieger Firm filed its own motion to determine the lien [dkt. # 203].The Court took testimony and heard argument on those motions on May 15, 2014.

II.

The law on attorney fees is well-settled in contingent fee cases in which an attorney is discharged before completing his services.“[T]he law creates a lien of an attorney upon the judgment or fund resulting from his services.”Ambrose v. Detroit Edison Co.,65 Mich.App. 484, 487–88, 237 N.W.2d 520(1975).If “an attorney's employment is prematurely terminated before completing services contracted for under a contingency fee agreement, the attorney is entitled to compensation for the reasonable value of his services on the basis of quantum meruit, and not on the basis of the contract, provided that his discharge was wrongful or his withdrawal was for good cause.”Plunkett & Cooney, P.C. v. Capitol Bancorp Ltd.,212 Mich.App. 325, 329–30, 536 N.W.2d 886, 889(1995)(citingMorris v. Detroit,189 Mich.App. 271, 278, 472 N.W.2d 43(1991) ).The phrase quantum meruit means “ ‘as much as deserved.’ ”Keywell & Rosenfeld v. Bithell,254...