Speaker Law
Blog

Charging Lien: Discharged attorneys may obtain a charging lien, which “is an equitable right to have the fees and costs due for services secured out of the judgment or recovery in a particular suit.” George v Sandor M Gelman, PC, 201 Mich App 474 (1993).

The Michigan Court of Appeals (MCOA) affirmed the lower court’s decision reducing the amount of an attorney’s charging lien in RivertownDevelopment Group v West Congress Street Partners, No. 330728.

Facts:

Petitioner Lawrence Walker was retained in May 2014 as counsel for West Congress Street Partners in a litigious landlord-tenant dispute. The relationship broke down, a new lawyer was hired and Walker was allowed to resign as counsel by court order dated March 11, 2015. A two-day hearing was held to determine the accuracy of Walker’s $35,094 charging lien on the settlement in April 2015. Following the hearing, the court determined the amount owed to be $18,889.62 calculated as follows:

            167 hours @ $300 = $50,100.00

            Expenses                         2,833.62

            Payments                     (34,044.00)

            Balance due                  $18,889.62

Walker, on his appeal, claimed the court abused its discretion by (1) making a math error when it found that West Congress made prior payments of $34,044 when the actual amount was $30,155, 2) reducing the billable hours from 217 to 167.

Analysis: The MCOA affirmed the lower court on both counts.

Math error: While it may be true that the math was in error and the correct amount of payments was $30,155, the error was not raised during the two-day hearing and the parties accepted the $34,000 figures as accurate. “It is not the trial court’s burden to check petitioner’s math when the petitioner’s own documentation clearly stated that payments on the account totaled $34,044.14.”

Hour Reduction: Courts calculate attorney fees by first determining the reasonable hourly rate customarily charged in the locality for similar services, then multiply by the reasonable number of hours expended. The MCOA supported the reduction in hours stating: “…the trial court explicitly stated that its decision was based on the parties’ testimony, petitioner’s billing statement, and the court’s knowledge of billing in general.” After the 2-day hearing, MCOA stated that “the trial court was in the best position to determine the reasonable hours expended by petitioner, which it did.”

The court “did not abuse its discretion by not crediting petitioner with all of the hours listed in the billing statement” and the Michigan Supreme Court said that in determining the number of reasonable hours, trial courts should “exclude excessive, redundant or otherwise unnecessary hours regardless of the attorneys’ skill, reputation or experience.”

Thus, the MCOA concluded that the trial court’s determination Walker reasonably expended 167 hours rather than the 217 billed on defendant’s case fell within “the range of principled outcomes.”

Lessons to be learned: Check your math more than once and be prepared to defend your hours when requesting enforcement of a charging lien or payment of your bill in court. 

• That the defendant’s acts or representations induced plaintiff to believe that the policy was in effect at the time of the accident,
• That the plaintiff justifiably relied on this belief, and
• That plaintiff was prejudiced as a result of his belief that the policy was still in effect.

The Michigan Court of Appeals (COA) concluded that the equitable-parent doctrine does not extend to unmarried couples, whether heterosexual or same-sex couples. And, because the doctrine doesn’t apply, Plaintiff Michelle Lake does not have standing to seek parenting time with the child. Therefore, the COA remanded the matter back to the trial court for entry of an order granting summary disposition in the defendant’s favor. Judge Douglas B. Shapiro wrote a concurring opinion, stating the circumstances where he could see a different outcome.

The facts of Lake v Putnam (No. 330955) are:

The plaintiff and defendant Kerri Putnam were in a romantic relationship from 2001 to 2014. During which defendant Putnam gave birth to an artificially inseminated child. When the relationship ended, defendant denied plaintiff visitation. Plaintiff filed suit and the Washtenaw Circuit Court granted her supervised visitation. Defendant appealed that decision to the Court of Appeals.

The COA opinion:

The court first turned to the standing issue, stating:

1.  Plaintiff is a third person as defined by MCL 722.22(k) as one who is an individual other than a parent, or one who is not a natural or adoptive parent of the child,

2.  Third persons under the Child Custody Act have limited standing in the following circumstances: a) they are guardians or limited guardians, or b) are unmarried biological parents or are related to the child but don’t have custody.

3.  Therefore, the plaintiff lacks standing since she meets none of the above scenarios.

Plaintiff also asserted she had standing under Michigan’s Equitable-Parent Doctrine. Under this doctrine a husband who is not the biological father to a child born during the course of the marriage can be considered the child’s father if:

1.  The husband and child have or the mother acknowledges their father-child relationship.

2.  The husband wants parental rights and is will to pay child support.

Plaintiff doesn’t have standing under this dshaoctrine since the parents were never married thus the child was not born during the course of a marriage. Michigan’s equitable doctrine applies only to married couples.

Plaintiff argued that her constitutional rights to due process and equal protection were violated. The court didn’t agree stating her argument wasn’t supported on the facts or the law. She was not married to the defendant and had she been so “regardless of whether the biological parent was male or female, the outcome of this appeal would have been different.”

Judge Shapiro, concurring:

Judge Shapiro, in a separate opinion, stated that the case would have turned out differently if the Plaintiff had shown that she and the defendant would have married before the child’s birth had the states where they lived, Michigan and Florida, allowed it. He referred to a COA case (Stankevichv Milliron, 31 Mich. App. 2233 (2015) where the couple married out of state before the child’s birth, which the court used to determine the standing of the non-biological parent and grant visitation. He would not limit this application to cases where the couple actually married in another state. Using the intent of Obergefell v Hodges, 15 S Ct 2584, he would expand the equitable parent doctrine to include situations where the couples were prevented by state law from marrying but lived together as a married couple and raised the child as co-parents. Because the facts of this case didn’t support that but for the state law ban the parties would have married, he supported the majority opinion.

He pointed out, however, that in a different scenario, where the parties show that they would have married had they been able, “I believe the courts would be required to recognize the parental rights of the non-biological parent” and determine custody and visitation considering the best interests of the child.