Krajewski v. Klawon, Docket Nos. 77-2867
| Decision Date | 06 July 1978 |
| Docket Number | Docket Nos. 77-2867,77-2868 |
| Citation | 270 N.W.2d 9,84 Mich.App. 532 |
| Parties | John W. KRAJEWSKI and Tonya S. Krajewski, Plaintiffs-Appellants, v. Mark R. KLAWON and Victor Campbell, Defendants-Appellees. Richard D. LILES and Frances L. Liles, Plaintiffs-Appellants, v. Mark R. KLAWON and Victor Campbell, Defendants-Appellees. 84 Mich.App. 532, 270 N.W.2d 9 |
| Court | Court of Appeal of Michigan — District of US |
[84 MICHAPP 533] Faintuck, Shwedel, Wolfram, McDonald & Zipser by William G. Wolfram, Farmington Hills, for plaintiffs-appellants.
Joseph J. Maloney, Southfield, Gerald F. Lindeborg, Madison Heights, for defendants-appellees.
Before KELLY, P. J., and D. E. HOLBROOK, Jr. and BEASLEY, JJ.
This is a dispute between two attorneys competing for fees for services rendered to plaintiffs arising out of claims for personal injuries sustained in an automobile accident. The date of the accident was June 15, 1973, and plaintiffs originally retained attorney Gerald F. Lindeborg[84 MICHAPP 534] to represent them. He apparently did so until November of 1974, at which time he was discharged and replaced by attorney Clarence Constan. Suit had not been filed by Mr. Lindeborg but negotiations had been conducted, medical information obtained and some investigation pursued, the extent of which is disputed.
On November 1, 1974, the successor attorney, Constan, filed personal injury suits in the Washtenaw County Circuit Court on plaintiffs' behalf. Shortly thereafter the two attorneys met, amicably this time, and during or following the meeting, Lindeborg's files were turned over to Constan in exchange for an agreement prepared by Constan and executed by both, which is reproduced as follows:
In due course the lawsuits were submitted to a mediation panel which evaluated the claims on or about December 15, 1976, to be in the amount of $45,000. All parties accepted the mediation award. Disharmony ensued.
On December 20, 1976, Lindeborg filed a notice claiming a lien against any settlement or judgment received by plaintiffs, but he did not file a motion to intervene under GCR 1963, 209. The Washtenaw County Clerk's office accepted the notice[84 MICHAPP 535] and filed the same. On March 2, 1977, Constan filed on plaintiffs' behalf a motion for entry of judgment in accordance with the mediation panel recommendations. This motion advised the trial court that defendants refused to pay the award to plaintiffs and their attorney because of the lien claimed by Lindeborg. The motion requested that the trial court make such determination as necessary to resolve the matter. Mr. Constan argued in a brief attached to the motion that Lindeborg was not entitled to a claim of lien and that an award to Lindeborg, if any, should be limited by Quantum meruit. The first issue defined in plaintiffs' brief in support of the motion was
The argument was made that attorney Lindeborg submitted the issue to the court and the plaintiffs urged the court to act thereon and asked the court to "determine what lien, if any, he has".
The trial court, on April 7, 1977, upon receiving a stipulation of the parties, ordered the Liles case discontinued with prejudice. The Krajewski case was similarly ordered discontinued with prejudice on May 4, 1977. At a hearing on the plaintiffs' motion for entry of judgment on April 13, 1977, at which attorney Constan was not present, attorney Lindeborg filed with the trial court the fee agreement dated February 4, 1975, referred to above. The trial court decided to enforce the agreement and awarded Lindeborg one-half of the attorneys' fee.
At a hearing on the entry of the order implementing the award, which took place May 25, 1977, Constan appeared and objected, but admitted preparing and signing the February 4th agreement.[84 MICHAPP 536] He now urged the trial court to decline to decide the attorney fee issue in spite of having previously requested such decision. The order was entered over his objections. Plaintiffs appeal of right from that order.
Plaintiffs argue that the trial court erred by entering an order in determination of a lien in favor of Mr. Lindeborg since he had neither appeared as the attorney of record nor intervened as a party in the principal litigation.
It is clear that attorney Lindeborg failed to comply with GCR 1963, 209.3 which requires a written application for intervention supported by pleadings setting...
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