Kolar v. Hudson, Docket No. 19081

• Decision Date: 15 August 1974
• Docket Number: Docket No. 19081,No. 2,2
• Citation: 55 Mich.App. 114,222 N.W.2d 53
• Parties: Richard KOLAR, Plaintiff-Appellee, William L. Fisher, Intervening Plaintiff-Appellant, v. John HUDSON and David R. Anderson, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 53

222 N.W.2d 53

55 Mich.App. 114

Richard KOLAR, Plaintiff-Appellee William L. Fisher, Intervening Plaintiff-Appellant, v. John HUDSON and David R. Anderson, Defendants-Appellees.

Docket No. 19081.

Court of Appeals of Michigan, Division No. 2.

Aug. 15, 1974.

Released for Publication Oct. 9, 1974.

Rehearing Denied Nov. 15, 1974.

William L. Fisher, pro se.

George H. LaPlata, West Bloomfield Hills, for Kolar.

Condit & McGarry, Bloomfield Hills, for Hudson and Anderson.

Before BRONSON, P.J., and BASHARA and VanVALKENBURG,* JJ.

VanVALKENBURG, Judge.

This appeal deals solely with the claim by intervening plaintiff Fisher for certain attorney fees allegedly owing by the principal plaintiff to intervening plaintiff, said fees allegedly resulting from services rendered by Fisher in the preparation of Kolar's suit against defendants. The underlying auto negligence action need not concern us, since that claim was settled and defendants tendered the settled amount to the county clerk's office as required by the order of the trial court.

It appears that plaintiff Kolar entered into an agreement with his uncle, intervening plaintiff Fisher, whereby Fisher, an attorney, would represent him for the purpose of pursuing his claim against defendants. Plaintiff Kolar apparently became dissatisfied with Fisher's efforts and sought to discharge Fisher and secure other counsel. Plaintiff Kolar allegedly executed a written instrument which purportedly gave intervening plaintiff Fisher an interest in plaintiff's cause of action and a lien against any recovery against defendants in the amount of $4333.33 plus interest at six percent per annum for the services rendered by Fisher in preparing the case. Plaintiff Kolar's new attorney thereafter filed a complaint on Kolar's behalf against defendants.

It further appears that after Kolar commenced his action against defendants, he filed a Request for Investigation against Fisher with the State Bar Grievance Board, alleging that Fisher neglected his duty in failing to commence the suit within a reasonable period of time and that Fisher solicited the case; and, therefore, Fisher should not be allowed to seek attorney fees if Kolar received a favorable judgment. Fisher filed his reply with the Grievance Board asserting that the matter of the fees was the subject of the aforementioned written agreement. The Grievance Board wrote a letter to Fisher seeking further information as to the basis of the $4333.33 recited in the 'agreement', indicated that the 'agreement' did not divest the Grievance Board of jurisdiction to investigate Kolar's complaint and informed Fisher that he must file a responsive answer to the complaint within twenty days or face an entry of a default.

At this point Fisher filed a document with the circuit court having jurisdiction over Kolar's suit against defendants entitled 'Petition for Intervention and for Other Relief'. In that document Fisher indicated that he had a right to intervene by virtue of the contract assigning him an interest in the litigation and a lien on any recovery to the extent of the agreed-upon amount of $4333.33 plus interest. This document further requested injunctive relief enjoining Kolar, his present attorney, and the Grievance Board and its attorney from proceeding on the matter before the Grievance Board. Fisher sought and obtained an Ex parte temporary restraining order. A show-cause hearing was scheduled.

The Grievance Board and its attorney moved for accelerated judgment on the basis of lack of jurisdiction. Plaintiff Kolar filed an answer to the motion to intervene asserting generally that Fisher's proper avenue of relief was either a separate contract action or arbitration before the arbitration panel of the Bar Association of Michigan. After the show-cause hearing, the trial court ordered the action for injunctive relief against the Grievance Board and its attorney dismissed. The trial court also ordered that 'Petitioner, William L. Fisher, is allowed only subordinate intervention as an unnamed party Plaintiff in this cause * * *' and that '* * * any sums of money whatsoever achieved or resulting from this litigation by settlement, judgment or any form whatsoever shall be paid into the Oakland County Clerk for distribution only on the order of this Court'.

Thereafter, Kolar settled with defendants for $8500.00. Kolar's attorney moved for a determination of disbursement of the settlement funds, filing with that motion a notice of hearing for that motion and a proof of service indicating that a copy of the notice of hearing had been sent to Fisher by certified mail. Fisher did not appear for the hearing. The trial court thereafter determined that $6100.00 should go to the plaintiff Kolar and $2400.00 should go to Fisher. ¹ An order was prepared and signed which provided that $6100.00 be paid to Kolar and that the $2400.00 be paid to Fisher upon receipt of his full and complete release or in the alternative that it be paid to Oakland County Clerk to be held for disbursement subject to the terms of the order.

Fisher moved for a rehearing with respect to the disbursement order alleging that he had never received notice of the hearing on the order, and that the order as entered was contrary to law. Kolar answered the motion for rehearing asserting that Fisher had refused to accept delivery of the certified letter containing the...