Morris v. City of Detroit

• Decision Date: 07 May 1991
• Docket Number: Nos. 119754,121203,s. 119754
• Citation: 472 N.W.2d 43,189 Mich.App. 271
• Parties: Sandra Gail MORRIS, Personal Representative of the Estate of Frederick K. Morris, Jr., deceased, Plaintiff-Appellant, v. CITY OF DETROIT, Defendant-Appellee. Richard Durant and Frederick Jasmer, Appellees, Sandra Gail MORRIS, Personal Representative of the Estate of Frederick K. Morris, Jr., deceased, Plaintiff-Appellant Cross Appellee, v. CITY OF DETROIT, Defendant-Appellee, Richard Durant, Appellee-Cross Appellant, and Frederick Jasmer, Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 43

472 N.W.2d 43

189 Mich.App. 271

Sandra Gail MORRIS, Personal Representative of the Estate of Frederick K. Morris, Jr., deceased, Plaintiff-Appellant, v. CITY OF DETROIT, Defendant-Appellee.

Richard Durant and Frederick Jasmer, Appellees, Sandra Gail MORRIS, Personal Representative of the Estate of Frederick K. Morris, Jr., deceased, Plaintiff-Appellant Cross Appellee, v. CITY OF DETROIT, Defendant-Appellee, Richard Durant, Appellee-Cross Appellant, and Frederick Jasmer, Appellee.

Nos. 119754, 121203.

Court of Appeals of Michigan.

Submitted Jan. 9, 1991, at Detroit.

Decided May 7, 1991, at 10:25 a.m.

Released for Publication July 29, 1991.

Hoekenga, Amberg, McNenly, Zuschlag, Firestone & Lee, P.C. by Daniel J. Hoekenga, Southfield, for Sandra G. Morris, personal representative of the estate of Frederick K. Morris, Jr., deceased.

Frederick D. Jasmer, P.C. by Frederick D. Jasmer, and Bodman, Longley & Dahling by Joseph A. Sullivan and M. Megan Maher, Detroit, for Frederick D. Jasmer.

Durant & Durant, P.C. by Vicki Mackie and Richard Durant, Detroit, for Richard Durant.

Before JANSEN, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

This is a consolidated appeal. In Docket Number 119754, plaintiff (during the course of the proceedings in this case, the plaintiff, Frederick K. Morris, Jr., died, and Sandra G. Morris, personal representative of the estate of Frederick K. Morris, Jr., deceased, was substituted as plaintiff) appeals as of right an August 4, 1989, order of the circuit court that distributed escrowed attorney fees to appellee Frederick D. Jasmer on a quantum meruit basis. In Docket Number 121203, plaintiff appeals as of right a September 25, 1989, order of the circuit court imposing sanctions against plaintiff upon appellee Jasmer's motion. Richard Durant cross appeals the circuit court's denial of his request for sanctions against plaintiff.

I

These appeals are another chapter in the continuing legal battle between plaintiff, defendant City of Detroit, and plaintiff's prior and current attorneys. In January 1980, plaintiff filed a complaint against his employer, defendant City of Detroit. Plaintiff claimed that the city had harassed him and refused to permit him to work as a result of his physical condition and that these actions violated the Handicappers' Civil Rights Act (HCRA), M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq. Throughout discovery plaintiff was represented by cross appellant Richard Durant. Before trial, however, plaintiff discharged Durant, whose motion to withdraw was granted in November 1984. Shortly before trial was to commence, plaintiff retained appellee Jasmer and signed a contingency fee agreement. Under this agreement, Jasmer was to receive one-third of any net recovery obtained against defendant; in the event that plaintiff did not prevail, but desired to appeal, Jasmer agreed to prosecute the appeal if expenses were paid and he received an additional five percent of any recovery.

After a five-day trial, a jury returned a verdict awarding plaintiff $365,000 in damages. Defendant city appealed, and Jasmer filed a responsive brief, both parties addressing, in part, aspects of defendant's duty to accommodate. After the parties had filed briefs, the Supreme Court released Carr v. General Motors Corp., 425 Mich. 313, 389 N.W.2d 686 (1986), which held that a disability related to a person's ability to perform the duties of the job is not a handicap within the meaning of the HCRA.

Just before oral arguments in this Court, plaintiff discharged Jasmer allegedly for (1) Jasmer's failure to file suit against Durant for legal malpractice, (2) Jasmer's attempts to settle plaintiff's case in connection with another case, (3) Jasmer's agreement to enter a stay without plaintiff's consent, and (4) Jasmer's improper handling of the case on appeal. This Court granted Jasmer leave to withdraw and permitted plaintiff's current attorney, Daniel Hoekenga, to argue the case on appeal.

Relying on Carr, this Court, in an unpublished opinion per curiam, decided March 9, 1987 (Docket No. 70281), reversed the jury verdict and remanded the case for a new trial on the basis of an erroneous jury instruction addressing the accommodation issue. Plaintiff, through Hoekenga, applied for leave to appeal to the Supreme Court, reasserting Jasmer's argument that the instructional error upon which this Court reversed was not properly preserved for appeal. In lieu of granting leave, the Supreme Court vacated the March 9, 1987, opinion of this Court and remanded the case back to this Court for reconsideration of the issue whether defendant waived any challenge to the disputed jury instruction. 429 Mich. 857, 412 N.W.2d 221 (1987). On remand, this Court, in an unpublished opinion per curiam, decided March 17, 1988 (Docket No. 103665), determined that the issue had been waived, and thus reinstated the jury verdict in favor of plaintiff.

By the time this appellate process was exhausted, the accumulation of interest increased the amount of the verdict award to more than $962,372.25. An escrow account consisting of one-third of the accumulated judgment amount was established upon plaintiff's request while the issue of attorney fees was disputed. Both Durant and Jasmer asserted rights to these fees; however, plaintiff refused to compensate either for any of their services. Rather, plaintiff claimed that his current attorney, Hoekenga, was entitled to the entire one-third pursuant to a contingency agreement entered into in December 1988, but made retroactively effective to January 1987.

Hearings were held on the issues of entitlement to fees and plaintiff's reasons for discharging Durant and Jasmer. On July 6, 1989, the circuit court issued a bench opinion regarding the attorney fee issue. The court concluded that the fee owed to Jasmer and Hoekenga was not necessarily limited to the one-third recovery cap provided in MCR 8.121. The court then concluded that Jasmer's fee would be based on quantum meruit because he was discharged before the occurrence of the contingency. In order to determine the amount to which Jasmer would be entitled, the court analyzed a number of factors, including his efforts, the results he achieved, and the reasons for his discharge.

The court found that Jasmer's efforts, in light of his retention on the eve of trial, were a significant factor in achieving the jury verdict in plaintiff's favor. The contentious relationship between plaintiff and his superior at work, noted the court, combined with equally plausible views of the evidence, revealed that Jasmer's superior advocacy skills were the primary factor in the substantial verdict for plaintiff. Moreover, the court pointed out that Jasmer was also able to secure a favorable advisory opinion from the jury on the issue whether plaintiff should have been returned to work.

Regarding the reasons for Jasmer's discharge, the circuit court specifically limited its findings to the four bases alleged and testified to by plaintiff during the hearing. The court found that at the time Jasmer was discharged there had been no agreement that he was to initiate a suit against Durant for his alleged deficient discovery. The court further found that, contrary to plaintiff's claim, Jasmer did not agree to a stay in violation of plaintiff's wishes, but that plaintiff had in fact consented to the stay. Regardless, the court noted that the stay produced a highly favorable result, because plaintiff could seek other employment during the stay and, if successful on appeal, would still receive one hundred percent of his salary and benefits during the enforcement of the stay.

Plaintiff also claimed that he discharged Jasmer because he lost the case on appeal. However, the court found that basis to be without merit because Jasmer was fired before the case was decided. Although this Court initially reversed, the circuit court noted that the verdict was reinstated on the basis of an argument raised by Jasmer in his appellate brief. Lastly, the circuit court rejected plaintiff's allegation that Jasmer attempted to settle his case as a "package deal" with another case. The court concluded that plaintiff's proffered reasons for discharging Jasmer were spurious. The court found that Jasmer completed 99 44/100 percent of the actual work required under his agreement with plaintiff, and awarded him the entire one-third contingency fee. The court concluded that plaintiff was free to compensate Hoekenga in whatever manner he deemed appropriate. The court's order to this effect was entered on August 4, 1989. The circuit court did not address Durant's entitlement to attorney fees because, pursuant to a stipulation, Jasmer agreed to pay Durant out of the fee he was awarded.

Jasmer and Durant then moved for sanctions against plaintiff for his unjustified refusal to compensate them for their services. The circuit court denied Durant's motion because his rights were protected by the stipulation agreement entered into with Jasmer regarding reimbursement of fees. According to the court, Durant did not incur any justifiable postjudgment expenses in connection with the proceedings to recover attorney fees and therefore was not entitled to sanctions. The circuit court did, however, award sanctions against plaintiff in favor of Jasmer after finding that plaintiff's unjustifiable discharge and refusal to compensate Jasmer, coupled with his inability to financially benefit by his refusal given his contingency agreement with Hoekenga, demonstrated that the postjudgment proceedings, brought to deprive Jasmer of an attorney fee, were done solely out of malice.

II

On appeal, plaintiff argues that the circuit court violated MCR 8.121 by, in essence, awarding attorney fees in excess of one-third of his recovery, since Jasmer was awarded the entire contingency fee and plaintiff was still obligated to compensate Hoekenga.

MCR 8.121 provides that if an attorney...