Michelle Mayer v. Steven Glen Gregerson ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
MICHELE MAYER, formerly known as UNPUBLISHED
MICHELE GREGERSON, June 26, 2018
Plaintiff-Appellant,
v No. 336850
Oakland Circuit Court
Family Division
STEVEN GLEN GREGERSON, LC No. 2005-710435-DO
Defendant,
and
TRISH OLESKA HAAS,
Petitioner-Appellee.
Before: BECKERING, P.J., and M. J. KELLY and O’BRIEN, JJ.
PER CURIAM.
Plaintiff, Michele Mayer, appeals as of right the order of the trial court granting the
petition of lawyer, Trish Haas, for payment of attorney fees. For the reasons stated in this
opinion, we affirm in part and reverse in part.
I. BASIC FACTS
This case arises out of a 2006 consent judgment of divorce. Following the divorce,
Mayer and her ex-husband continued to litigate issues regarding spousal support. Throughout
the proceedings, Mayer hired a number of lawyers and, at times, represented herself in propria
persona. Relevant to this appeal, in February 2016, Mayer retained Haas to represent her on a
spousal-support issue. In October 2016, the trial court entered a stipulated order terminating
Mayer’s ex-husband’s spousal support obligation. As part of that order, Mayer’s ex-husband’s
lawyer, Susan Lichterman, sent Haas a check for $35,888.24 that was made payable to Haas and
Mayer. Mayer refused to sign the check, and she began disputing Haas’s attorney fees, including
the hourly rate and the number of hours billed for services performed by Haas’s legal assistant,
Lori Buss. As a result, Haas petitioned the trial court for payment of her attorney fees, including
fees incurred for work performed by her legal assistant.
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An evidentiary hearing was held to determine whether the requested attorney fees were
reasonable. Both Haas and Mayer testified at the hearing and presented documentary evidence
in support of their arguments. The trial court determined that Haas’s fees were reasonable, with
the exception of the legal fees incurred in connection with her petition for attorney fees. The
court, therefore, awarded Haas $22,907.91 in attorney fees and costs.
II. CHARGING LIEN
A. STANDARD OF REVIEW
Mayer first argues that the trial court erred by failing to address whether Haas could
impose an “attorney’s lien” on the escrow check. “Whether a lien is authorized in a particular
case is a question of law” that we review de novo. Ypsilanti Charter Twp v Kircher, 281 Mich
App 251, 281; 761 NW2d 761 (2008).
B. ANALYSIS
A “charging lien ‘creates a lien on a judgment, settlement, or other money recovered as a
result of the attorney’s services.’ ” Souden v Souden, 303 Mich. App. 406, 411; 844 NW2d 151
(2013), quoting George v Sandor M Gelman, PC, 201 Mich. App. 474, 476; 506 NW2d 583
(1993). “While not codified in a statute, the existence of a common-law attorneys’ charging lien
is recognized in Michigan.” George, 201 Mich. App. at 477 (citation omitted). In addition,
attorney charging “liens automatically attach to funds or a money judgment recovered through
the attorney’s services.” Id. Here, the attorney-fee agreement signed by Mayer included a
provision permitting Haas to place “an attorney’s lien on any and all money, property or real
property recovered or received by the client to the extent allowed by Michigan Law, for such
outstanding amount/balance that is due and payable to HASS & ASSOCIATIONS, PLLC.” At
the time of the evidentiary hearing, there was an outstanding balance on Mayer’s account.1
Thus, as noted in Souden, Michigan law permitted Haas to place a lien on the check, i.e., the
money recovered as a result of Haas’s services.
III. REASONABLENESS OF ATTORNEY FEES
A. STANDARD OF REVIEW
Mayer next argues that the trial court abused its discretion by determining that Haas’s
requested attorney fees were reasonable. “This Court reviews a trial court’s award of attorney
fees and costs for an abuse of discretion.” Souden, 303 Mich. App. at 414. “An abuse of
discretion occurs when the trial court’s decision is outside the range of reasonable and principled
outcomes.” Pirgu v United Services Auto Ass’n, 499 Mich. 269, 274; 884 NW2d 257 (2016).
1
On appeal, Mayer contends that the outstanding balance was “zero.” She does not direct us to
any supporting evidence in the lower court record. We do note that Mayer did not believe she
should pay the final balance because it was unreasonable; however, just because Mayer was
disputing the reasonableness of the fees did not mean that there was not an outstanding balance.
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B. ANALYSIS
“An attorney-client relationship must be established by contract before an attorney is
entitled to payment for services rendered.” Plunkett & Cooney, PC v Capitol Bancorp Ltd, 212
Mich. App. 325, 329; 536 NW2d 886 (1995). “An attorney is entitled to recover fees for services
rendered under the agreement, even if the agreement is later terminated. However, such fees
must be reasonable.” Souden, 303 Mich. App. at 415 (citation omitted). “[T]he burden of proving
the reasonableness of the requested fees rests with the party requesting them.” Smith v Khouri,
481 Mich. 519, 528-529; 751 NW2d 472 (2008) (opinion by TAYLOR, C.J.) (citation omitted).
Further, the party requesting attorney fees must also “show both that the attorney fees were
incurred and that they were reasonable.” Souden, 303 Mich. App. at 415.
The first step begins with establishing a baseline figure, which is computed by
multiplying the reasonable hourly fee by the “reasonable number of hours expended in the case.”
Pirgu, 499 Mich. at 281. After determining the baseline figure, the trial court should only then
apply the reasonableness factors. Id. If multiple lawyers work on a case the trial court “should
be careful to perform a separate analysis with reference to” each attorney, “considering both the
hourly rate and the number of hours reasonably expended, and should consider whether it was
reasonable” to have multiple lawyers “ ‘on the clock’ during the trial.” Smith, 481 Mich. at 534.
Here, the billing statements submitted by Haas include charges for services performed by Haas,
which were billed at $300 per hour, and charges for services performed by Haas’s legal assistant,
Buss, which were billed at $135 per hour. Mayer challenged the reasonableness of the fees, both
for services performed by Haas and for services performed by her legal assistant.
With regard to the charges for services performed by Haas, Mayer concedes that $300 per
hour is a reasonable fee for the locality. However, she suggests that the number of hours
expended was clearly excessive. In support, she directs us to billing statements generated by her
ex-husband’s lawyer for proceedings earlier in case. Mayer contends that, over a similar period
of time, the fees generated by her ex-husband’s lawyer were less than the fees generated by
Haas. However, like the trial court, we do not find that information to be relevant. The fact that
attorney fees generated by a different lawyer in different proceedings were lower over a similar
timeframe does not account for the individualized proceedings that Haas had to respond to as
Mayer’s lawyer. 2
In addition, we find no merit in Mayer’s argument that the billing statements do not
indicate that Haas spent time reviewing the “extensive” history of the case. Mayer makes much
of the fact that “review of extensive history” was not mentioned on the billing statements;
however, our review of the bills shows that Haas did, in fact, review the case. Moreover, at the
evidentiary hearing, Haas testified that her review needed to be particularly thorough in light of
the fact that Mayer had previously been sanctioned for bringing a frivolous claim.
2
In the proceedings before the trial court, Mayer did not directly challenge the hours expended
by Haas for any particular charge. On appeal, she briefly contends that Haas billed for more than
four hours’ time for attendance at a hearing that only last about 21 minutes. However, given that
this argument was not raised before the trial court, we decline to consider it now.
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Mayer next contends that the trial court erred by finding the attorney fees reasonable in
light of the results obtained. She contends that Haas improperly rejected a settlement offer
without consulting her, and that, had the settlement offer been accepted, she would have received
a more favorable settlement. Mayer, however, did not argue before the trial court that her lawyer
failed to properly communicate a settlement offer. Further, the trial court did not err by finding
the results obtained were favorable to Mayer, given that she was awarded a sizable sum of
money.
We note that the trial court provided a detailed analysis of the “reasonableness” factors
set forth in MRPC 1.5(a) and in Wood v Detroit Automobile Inter-Ins Exch, 413 Mich. 573; 321
NW2d 653 (1982). The court stated that, based on its review of those factors, it would not adjust
the baseline rate either up or down. See Smith, 481 Mich. at 522. On appeal, Mayer does not
challenge its findings on any of those factors, and we see no abuse of discretion in its application
of those factors with regard to the attorney fees generated by Haas.
We next address the trial court’s findings as they pertained to Haas’s legal assistant. At
the outset, we note that under MCR 2.626, “[a]n award of attorney fees may include an award for
the time and labor of any legal assistant who contributed nonclerical legal support under the
supervision of an attorney, provided the legal assistant meets the criteria set forth in Article 1, §
6 of the Bylaws of the State Bar of Michigan.” That Bylaw provides:
Any person currently employed or retained by a lawyer, law office,
governmental agency or other entity engaged in the practice of law, in a capacity
or function which involves the performance under the direction and supervision of
an attorney of specifically-delegated substantive legal work, which work, for the
most part, requires a sufficient knowledge of legal concepts such that, absent that
legal assistant, the attorney would perform the task, and which work is not
primarily clerical or secretarial in nature, and:
(a) who has graduated from an ABA approved program of study for legal
assistance and has a baccalaureate degree; or
(b) has received a baccalaureate degree in any field, plus not less than two
years of in-house training as a legal assistant; or
(c) who has received an associate degree in the legal assistant field, plus
not less than two years of in-house training as a legal assistant; or
(d) who has received an associate degree in any field and who has
graduated from an ABA approved program of study for legal assistants, plus not
less than two years of in-house training as a legal assistant; or
(e) who has a minimum of four (4) years of in-house training as a legal
assistant;
may upon submitting proof thereof at the time of application and annually
thereafter become a Legal Assistant Affiliate Member of the State Bar of
Michigan. [Bylaws of the State Bar of Michigan, Art I, § 6.]
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Here, Haas presented evidence that her legal assistant met the requirements set forth in
Article I, § 6(a)-(e). However, she did not set forth evidence that all the work performed by her
legal assistant was “nonclerical,” MCR 2.626, or rather work “which involves the performance
under the direction and supervision of an attorney of specifically-delegated substantive legal
work, which work, for the most part, requires a sufficient knowledge of legal concepts such that,
absent that legal assistant, the attorney would perform the task, and which work is not primarily
clerical or secretarial in nature.” Bylaws for the State Bar of Michigan, Art I, § 6. As a result,
Haas has failed to establish that all of the services provided by her legal assistant were
recoverable as attorney fees under MCR 2.626.
A cursory examination of the billing statements reflect that the services performed by
Haas’s legal assistant included clerical services. For example, on February 18, 2016, Haas’s
legal assistant billed 0.20 hours for printing and saving documents from Mayer. Then, on
February 22, 2016, she billed 0.40 hours for printing and saving to the electronic file documents
received from Mayer. On March 17, 2016, she billed 0.20 hours for scanning and saving a
motion received from opposing counsel and then e-mailed a copy of the scanned documents to
Mayer. On March 23, 2016, Haas’s legal assistant billed 0.10 hours for faxing an order to
opposing counsel for a signature, and on March 28, 2016, she billed 0.10 hours for scanning and
saving to the electronic file a copy of an order.3 The charges for April 2016, May 2016, June
2016, July 2016, and August 2016 also reflect charges for printing and saving information to the
electronic file and for faxing and copying information. Although we recognize that these clerical
tasks had to be done, the court rules do not allow for an attorney fee award to include fees
generated by a legal assistant who, rather than doing legal work under the supervision of a
lawyer, is performing run-of-the-mill clerical work. Because the trial court failed to consider the
clerical, rather than legal nature, of some of the services performed by Haas’s legal assistant, the
trial court abused its discretion to the extent that it found all the hours performed by Haas’s legal
assistant were reasonably expended.
Next, in the proceedings before the trial court, Mayer expressly argued that hours spent
by Haas’s legal assistant at hearings were excessive and unnecessary. At the evidentiary hearing,
she testified that she did not find Haas’s legal assistant to “be an attribute,” and she testified that
the legal assistant was basically there to “keep [Mayer] company.” The billing statements
indicate that Haas’s legal assistant spent 18 hours attending hearings. Although this testimony
was unrebutted, the trial court did not address it in its opinion. Still, given that the unrebutted
evidence was that her presence there was just to keep Mayer company, to the extent that the trial
court found those hours were expenses reasonably incurred, the court abused its discretion.
3
On appeal, Mayer contends that by billing in 0.10 hour increments for services performed by
her legal assistant, Haas breached the fee agreement. However, Mayer did not bring a separate
action for breach of contract. Further, she does not argue that the services were not actually
performed. Thus, as it pertains to the reasonableness of the attorney fees sought, the mere fact
that the hours expended were not billed in conformity to the contract is irrelevant to a
determination of whether the fees sought are reasonable.
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Finally, Mayer argued before the trial court that $135 per hour was not a reasonable
hourly rate for Haas’s legal assistant.4 In making that determination, the court relied on its
December 28, 2015 decision awarding attorney fees and costs for proceedings undertaken earlier
in the case. In the December 28, 2015 order, the court found that it was reasonable for a legal
assistant to receive up to $175 per hour for work performed in connection with the case. On
appeal, Mayer cursorily references her earlier challenge to the reasonableness of a $135 per hour
rate. However, “it is not enough for an appellant in his brief simply to announce a position or
assert an error and then leave it up to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for authority either to
sustain or reject his position.” Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959).
Accordingly, as this issue has been abandoned on appeal, we decline to address it further.
IV. CONCLUSION
We affirm the trial court’s order with regard to the attorney fees for Haas because the trial
court did not abuse its discretion by finding with regard to Haas that (1) $300 per hour was a
reasonable hourly rate, (2) the number of hours expended was reasonable, and (3) there was no
need to make an up or down adjustment to Haas’s requested attorney fees for the services that
Haas performed.5 However, we reverse the court’s order to the extent that it determined the
number of hours expended by Haas’s legal assistant was reasonable. On remand, the trial court
shall carefully evaluate the hours billed by Haas’s legal assistant and disallow hours expended on
clerical tasks. The trial court shall also consider whether it was necessary to have a lawyer and a
legal assistant “on the clock” during the hearings, and, if so, whether that time was primarily
clerical or secretarial in nature or was instead the type of assistance contemplated under Article I,
§ 6 of the State Bar of Michigan Bylaws. See Smith, 481 Mich. at 534.
4
“In a fee dispute, the trial court should consider the language of the fee agreement to determine
if the charged fees comport with the agreement.” Souden, 303 Mich. App. at 416. Here, with
regard to the legal assistant, the fee agreement only stated that the legal assistant’s work would
be billed “at a lower rate.” We are troubled by the lack of specificity in this agreement. As
written, the legal assistant could have sought $299.99 per hour and still been compliant with the
terms of the agreement. MRPC 1.5(b) states “[w]hen the lawyer has not regularly represented
the client, the basis or rate of the fee shall be communicated to the client, preferably in writing,
before or within a reasonable time after commencing the representation.” Again, we note that
under certain circumstances, an award of attorney fees may include fees generated by a legal
assistant. And, in this case, Haas’s request for attorney fees included fees for time and labor
performed by her legal assistant. Given that this is part of her request for attorney fees, the rate
should have been communicated in writing to Mayer either before or shortly after the legal
representation was commenced.
5
Although not challenged on appeal, we see no error in the trial court’s order disallowing Haas
from collecting attorney fees in connection with her petition for attorney fees.
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Affirmed in part and reversed in part and remanded for further proceedings. We do not
retain jurisdiction. Neither party may tax costs, as neither party prevailed in full. MCR
7.219(A).
/s/ Jane M. Beckering
/s/ Michael J. Kelly
/s/ Colleen A. O'Brien
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