Green v. Nevers, s. 95-1940
| Citation | 111 F.3d 1295 |
| Decision Date | 06 June 1997 |
| Docket Number | 95-1941,Nos. 95-1940,s. 95-1940 |
| Parties | Rose Mary GREEN, Personal Representative of the Estate of Malice Wayne Green, Deceased, Plaintiff-Appellee, Jessie Green, Jr.; Ollie Frye; Kim Nihiser, as Mother and Next Friend of Jacqueline Dennison, a minor; Peggie Wright; First Busey Trust & Investment Company, as guardian of the Estate of Jacqueline Dennison; Shakieta Strawter; Lachita Miller; Edniquech Grubbs; Patricia Green; Treise Green; Sherry Green, Rose Mary Green; and Monica Green, Claimants-Appellees, Ernest L. Jarrett (95-1940); Brunetta Brandy (95-1941), Attorneys, Movants-Appellants, v. Larry NEVERS, et al., Defendants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Rose Mary Green (briefed), Detroit, MI, pro se.
Judith A. McNair, Detroit, MI, for plaintiff-appellee.
Ernest L. Jarrett (argued and briefed), Detroit, MI, for Ernest L. Jarrett.
Justin C. Ravitz, Patrick J. Burkett (argued), Sommers, Schwartz, Silver & Schwartz, Southfield, MI, for Jessie Green, Jr., Ollie Frye, Patricia Green, Treise Green, Sherry Green, Monica Green.
Ralph J. Sorlin, Reosti, James & Sirlin, Detroit, MI, for Nihiser.
Thomas A. Ricca, Detroit, MI, for Peggie Wright.
Joseph W. Phebus (briefed), Phebus, Winkelmann, Wong & Bramfeld, Urbana, IL, for First Busey Trust and Investment Co.
Kenneth N. Hylton, Detroit, MI, for Shakieta Strawter, Lachita Miller.
Saunders V. Dorsey (argued and briefed), Farmington Hills, MI, Jerome P. Barney (argued), Jerome P. Barney & Associates, Detroit, MI, for Edniquech Grubbs.
Donald A. Thigpen, Jr. (briefed), National Bar Ass'n, General Counsel, Washington, DC, amicus curiae National Bar Ass'n.
James W. McGinnis (argued and briefed), Detroit, MI, for Brunetta Brandy.
Before: LIVELY, MERRITT, and DAUGHTREY, Circuit Judges.
Malice Green died on November 5, 1992, allegedly as the result of a beating by Detroit police officers. Four days later attorney Brunetta Brandy, now an appellant, filed a wrongful death action in a Michigan state court in the name of Rose Mary Green, widow and personal representative of Malice Green's estate. Within less than one month the City of Detroit offered to settle the case for $5.25 million. Now, more than four years later, two of the many lawyers involved in the case are contesting the amount and division of the district court's attorney fee award. It is time to bring an end to this unseemly spectacle.
The caption of the complaint filed in state court showed only Rose Mary Green as the plaintiff. Following removal of the case to federal court, where it was assigned to Judge Gerald Rosen, however, attorney Gerald Thurswell appeared on behalf of Malice Green's oldest daughter, Edniquech Grubbs. Although Thurswell stated that Ms. Grubbs had been appointed co-personal representative with Mrs. Green, he did not file a copy of the order appointing Ms. Grubbs with the document.
After an abortive attempt by attorney Brandy to dismiss the action pursuant to FED.R.CIV.P. 41(a)(1)(i), the attorneys then on record as representing the parties, including the defendant City of Detroit, advised the court that they desired to place a settlement agreement on the record. The attorneys also sought to seal the record, but the court denied this request noting the widespread publicity and interest in the case. Disturbed by the fact that the settlement agreement provided for payment of $1.7 million in attorney fees even though very little legal work had been performed, the court directed counsel to file affidavits relating to the amount of work performed by each attorney in the case. To clear the record concerning the attempted dismissal, the parties stipulated to reinstate the case. All of these steps had been taken by December 28, 1992, less than two months after Malice Green's death.
Shortly thereafter, attorney Thurswell, who represented several individual claimants as well as Ms. Grubbs as co-personal representative, advised the court that he had been dismissed by several of the claimants and he filed a motion to withdraw as counsel for all of his clients. The court set a hearing on the motion to withdraw for January 11, 1993. During the next week, attorney Justin Ravitz filed an appearance on behalf of Malice Green's parents and three sisters and a later appearance on behalf of Ollie Frye, the decedent's maternal grandmother. Although he did not file a formal notice of appearance until January 14, 1993, attorney Joseph Phebus notified the court at about the same time that he would be representing Kim Nihiser, the mother and next friend of Jacqueline Dennison, a minor child of the decedent.
On January 7, 1993, attorney Brandy filed a notice of appearance as co-counsel for Edniquech Grubbs, for whom attorney Thurswell had previously appeared, and a stipulation to dismiss under FED.R.CIV.P. 41(a)(1)(ii) signed by John Quinn, an attorney for the City of Detroit, and Ms. Brandy as "attorney for plaintiff." Judge Rosen met with all counsel on January 11, 1993. At that time, the attorneys advised the court that the proposed settlement had broken down but that the parties wished to pursue further negotiations. When the court inquired about the pending stipulation to dismiss, attorneys Ravitz and Phebus stated that they had not signed, and indeed objected to, the stipulation. On January 14, 1993, attorney Phebus filed a formal objection to the dismissal, contending that dismissal would jeopardize Jacqueline Dennison's rights.
On January 15, 1993, attorney Saunders Dorsey filed an appearance on behalf of Edniquech Grubbs, in her representative capacity, and on February 1, attorney Jerome Barney filed an appearance on behalf of Edniquech Grubbs, also in her representative capacity. On that same date the City of Detroit filed a motion to dismiss arguing that it was protected by governmental immunity.
The court granted Mr. Thurswell's motion to withdraw as attorney for Edniquech Grubbs and others on March 4, 1993, and issued a notice setting a scheduling conference for March 25, 1993. The notice directed the attorneys to be prepared to discuss several aspects of the case, including the court's subject matter jurisdiction. Prior to the scheduling conference, the court was advised that the parties had reached a final settlement with the city for $5.25 million allocating different amounts to each of the claimants and $1.2 million to the attorneys for the estate. At the scheduling conference, counsel for the estate advised the court of their position that the court no longer had jurisdiction because of the stipulated dismissal and that they intended to proceed in probate court. The court invited briefing on its jurisdiction, and several parties filed briefs addressing the issue. On April 13, the court entered an order finding the stipulation to dismiss ineffective and retaining jurisdiction.
After unsuccessful motions by various counsel for reconsideration, to proceed in probate court, and to disqualify the judge, the court entered a consent judgment on July 18, 1994. This document granted judgment in the amount of $5.25 million in favor of the estate and against the City of Detroit only, the individual defendants never having been served. The court conducted a hearing on the distribution of the $5.25 million on October 21, 1994. At that time, the court also heard arguments on several jurisdictional issues. On November 7, 1994, the court issued an opinion denying the various motions to dismiss, clarifying the distribution of settlement proceeds, determining that no valid contingent fee agreement existed, and withholding determination of the issue of attorney fees. At the same time, the court also entered a separate order directing partial payment of the settlement proceeds to the claimants. After the dismissal of an appeal and petition for a writ of mandamus concerning the November 7, 1994 rulings, the court reviewed the affidavits, briefs, and supplemental information submitted by attorneys Brandy, Jarrett, and Dorsey and entered an order setting the amount of attorney fees for each on July 28, 1995.
Having previously found that none of the attorneys had binding contingent fee agreements with the Malice Green estate, the court considered the amount of fees they would be entitled to receive from the estate on a quantum meruit basis. Applying the factors listed in Rule 1.5(a) of the Michigan Rules of Professional Conduct, the court awarded fees as follows: Ernest Jarrett, who worked with Attorney Brandy under a "fee sharing agreement," $250,000; Brunetta Brandy, $173,000; Saunders Dorsey, who represented Rose Mary Green individually, $170,000. This order also directed the distribution of the remaining settlement proceeds, which had been escrowed awaiting determination of fees.
This court consolidated attorney Brandy and Jarrett's separate appeals. The prolix arguments of the appellants boil down to four issues:
(1) Whether the district court had subject matter jurisdiction;
(2) Whether the case should have been dismissed pursuant to Rule 41;
(3) Whether the district court erred in rejecting the contingent fee agreement and setting the amount of attorney fees;
(4) Whether Judge Rosen should have disqualified himself.
We discuss these issues in the order listed.
The attorney-appellants assert that the district court lacked subject matter jurisdiction over this wrongful death action, contending that the complaint alleged no federal claims against the City of Detroit. Review of the complaint belies the appellants' contention. Count IV of the complaint alleges that the City of Detroit's police department and chief of police "permitted, encouraged, tolerated and ratified a pattern and practice of unjustified, unreasonable, and excessive force by police officers." The complaint further alleges that the ...
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