Estate of Joanna L Hubbard v. Oakwood Healthcare Inc ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SARAH COLEGROVE, Special Fiduciary for the UNPUBLISHED
ESTATE OF JOANNA L. HUBBARD, November 9, 2023
Plaintiff-Appellee,
v No. 357997
Wayne Circuit Court
OAKWOOD HEALTHCARE INC., and BELAL F. LC No. 16-011622-NO
ABDALLAH, M.D.,
Defendants,
and
ANDREW MOXIE,
Appellant,
and
JOHN HUBBARD and JULIE HUBBARD,
Intervening Parties-Appellees.
SARAH COLEGROVE, Special Fiduciary for the
ESTATE OF JOANNA L. HUBBARD,
Plaintiff-Appellee,
v No. 359571
Wayne Circuit Court
OAKWOOD HEALTHCARE, INC., and BELAL F. LC No. 16-011622-NO
ABDALLAH, M.D.,
Defendants,
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and
ANDREW MOXIE and SARA K.
MACWILLIAMS,
Appellants,
and
JOHN HUBBARD and JULIE HUBBARD,
Intervening Parties-Appellees.
Before: CAVANAGH, P.J., and RIORDAN and PATEL, JJ.
PER CURIAM.
In Docket No. 357997, interested-party, Andrew Moxie, appeals as of right the trial court’s
order, entered by visiting Wayne Circuit Court Judge William J. Giovan, dismissing his claim for
attorney fees for legal services he provided on behalf of the Estate of Joanna L. Hubbard (“the
estate”) in a circuit court action against defendants Oakwood Healthcare, Inc., and Dr. Belal F.
Abdallah, M.D. In Docket No. 359571, Moxie and his attorney, Sara K. MacWilliams, appeal as
of right the trial court’s postjudgment order awarding intervening parties John and Julie Hubbard
sanctions against Andrew Moxie in the amount of $50,350.25, and holding that MacWilliams was
jointly liable with Moxie for $42,100.25 of that amount. For the reasons set forth in this opinion,
we reverse the dismissal of Moxie’s claim for attorney fees, vacate the trial court’s judgment of
sanctions, and remand to that court for further proceedings.
I. BACKGROUND
These appeals arise from a dispute regarding Moxie’s entitlement to attorney fees from the
estate of Joanna L. Hubbard. After Joanna’s husband, John J. Hubbard, passed away, Joanna filed
a lawsuit against Oakwood Healthcare and Dr. Abdallah in 2016, challenging their failure to
conduct an autopsy on John’s body. Joanna was originally represented by attorney B. A. Tyler,
who subsequently withdrew as counsel. In November 2017, Moxie, who is married to Joanna’s
daughter, Susan Hubbard, filed an appearance on Joanna’s behalf. Joanna died approximately a
month later. Joanna’s son, John D. Hubbard, as personal representative of Joanna’s estate, was
later substituted as the plaintiff. Tyler re-entered the case as an attorney for the estate, but Moxie
also continued to provide legal services for the estate. The parties dispute the nature of any
agreement with Moxie to provide legal representation for the estate and whether there was any fee
agreement. Although Moxie claims that Tyler agreed to a reduced 25% contingency fee, and that
he, Moxie, agreed to an 8% contingency fee, it is undisputed that neither Tyler nor Moxie entered
into a written fee agreement with either Joanna or the personal representative of her estate.
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In September 2019, following a jury trial, the trial court entered a judgment in favor of the
estate against Oakwood, and awarded damages of $1,259,750, prejudgment interest of
$117,210.54, taxable costs of $480, and case evaluation sanctions of $135,000, for a total judgment
of $1,512,440.54. In November 2019, Moxie filed an attorney charging lien against the estate,
claiming that he was entitled to recover his attorney fees against the judgment proceeds for his
legal representation of Joanna and her estate. Following an evidentiary hearing in July 2020, the
trial court determined that Moxie was not entitled to recover any contingency fee because a written
fee agreement was never obtained, but found that he did provide legal services for the estate and
was entitled to an award of attorney fees under a quantum meruit theory. The court ordered a
continued evidentiary hearing “to determine the total fees and costs.”
In August 2020, John D. Hubbard was removed as personal representative of Joanna’s
estate “due to the acrimony between the interested parties.” The court appointed Sarah Colegrove
as special fiduciary to “[t]ake possession and control of all Estate assets,” and authorized her, in
relevant part, “to terminate and or hire independent legal counsel” in the circuit court action and
granted her “full power and authority to make any and all decisions, including settlement, which
are in the best interests of the Estate including without limitation, the handling of any and all
litigation that includes the pending claim of Andrew Moxie for attorney fees and costs pending in
the Civil Lawsuit until completion.”
After Moxie filed an amended motion for attorney fees, John D. Hubbard and his wife Julie
(collectively “the Hubbards”) were allowed to intervene. Moxie also filed a motion to disqualify
the trial court, visiting Judge Giovan, which both Judge Giovan and the chief judge denied. The
Hubbards subsequently filed a motion for summary disposition of Moxie’s attorney-lien claim
under MCR 2.116(C)(10), and also requested sanctions under MCR 1.109(E)(5) and MCL
600.2591(1). Colegrove, as special fiduciary for the estate, filed a concurrence with the Hubbards’
motion. The trial court granted the Hubbards’ motion for summary disposition, dismissed Moxie’s
claim for attorney fees, and also granted the Hubbards’ request for sanctions. The court later
entered a judgment for sanctions against Moxie in the amount of $50,350.25, and ordered that
MacWilliams was jointly liable for $42,100.25 of the $50,350.25 total awarded against Moxie.
The court declined to award sanctions to the estate.
II. MOXIE’S CHARGING LIEN
Moxie first argues that the trial court erred by dismissing his claim for attorney fees under
MCR 2.116(C)(10). We agree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Dougherty v City of Detroit, 340 Mich App 339, 345; 986 NW2d 467 (2021). The Hubbards
moved for summary disposition under MCR 2.116(C)(10). In El-Khalil v Oakwood Healthcare,
Inc, 504 Mich 152, 160; 934 NW2d 665 (2019), our Supreme Court explained:
A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a claim.
Johnson v VanderKooi, 502 Mich 751, 761; 918 NW2d 785 (2018). When
considering such a motion, a trial court must consider all evidence submitted by the
parties in the light most favorable to the party opposing the motion. Id. A motion
under MCR 2.116(C)(10) may only be granted when there is no genuine issue of
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material fact. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 (2016).
“A genuine issue of material fact exists when the record leaves open an issue upon
which reasonable minds might differ.” Johnson, 502 Mich at 761 (quotation marks,
citation, and brackets omitted).
Additionally, the trial court’s decision with respect to whether to impose an attorney’s
charging lien is reviewed for an abuse of discretion. Reynolds v Polen, 222 Mich App 20, 24; 564
NW2d 467 (1997). When the trial court’s decision falls outside the range of reasonable and
principled outcomes, it results in an abuse of discretion. Reed-Pratt v Detroit City Clerk, 339 Mich
App 510, 516; 984 NW2d 794 (2021).
“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). Preliminarily, we agree that Moxie cannot establish
a valid claim for a contingency fee because an agreement for a contingency fee must be in writing,
MCR 8.121(F); MRPC 1.5(c), and Moxie does not dispute that he does not have a written fee
agreement with either Joanna, the decedent, or with John Hubbard, who was the personal
representative of Joanna’s estate at the time Moxie provided his legal services.
Moxie further argues, however, that he is entitled to recover his attorney fees under a theory
of quantum meruit. Although Moxie cites Ambrose v Detroit Edison Co, 65 Mich App 484; 237
NW2d 520 (1975), in support of this argument, that decision is not directly on point. In Ambrose,
this Court held that “an attorney on a contingent fee arrangement who is wrongfully discharged,
or who rightfully withdraws, is entitled to compensation for the reasonable value of his services
based upon [q]uantum meruit, and not the contingent fee contract.” Id. at 491. In Reynolds, 222
Mich App at 24, this Court similarly recognized that “[a] clear line of authority indicates that when
a client wrongfully terminates an attorney or an attorney rightfully withdraws from a matter,
recovery of attorney fees on a quantum meruit basis is appropriate.” In Reynolds, id. at 24-25, this
Court also cited Plunkett & Cooney, 212 Mich App at 330, for the proposition that recovery under
a quantum meruit theory, rather than the contingency-fee contract, is permissible because a client
has the right to discharge their counsel, and will not be held liable under the contract for exercising
that right. However, this Court in Reynolds further concluded that there are some circumstances
under which recovery under a quantum meruit theory is not appropriate, explaining:
These cases indicate that quantum meruit recovery of attorney fees is barred when
an attorney engages in misconduct that results in representation that falls below the
standard required of an attorney (e.g., disciplinable misconduct under the Michigan
Rules of Professional Conduct) or when such recovery would otherwise be contrary
to public policy. [Id. at 26.]
This case is distinguishable from Ambrose in which, unlike here, the parties had a written
contingency-fee agreement, and the issue involved the attorney’s right to recover an attorney fee
under a quantum meruit theory where the attorney was wrongfully discharged or rightfully
withdrew. That decision does not address an attorney’s right to recover an attorney fee under a
quantum meruit theory where a written fee agreement does not exist. However, in Meisner Law
Group, PC v Weston Downs Condo Ass’n, 321 Mich App 702, 726; 909 NW2d 890 (2017), this
Court observed that for a party to be able to recover attorney fees under a quantum meruit theory,
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there cannot be an express contract that addresses the same subject matter, and further recognized
that “the law will imply a contract to prevent unjust enrichment only if the defendant has been
unjustly or inequitably enriched at the plaintiff’s expense.” Id. (quotation marks and citation
omitted). Therefore, under the authority of Meisner Law Group, Moxie would be able to recover
under a quantum meruit theory, even without a written contingency-fee agreement.
Moxie presented invoices for services performed from November 9, 2017 to December 3,
2019. These services included, among other things, preparation of a motion for a protective order,
preparation of interrogatories and requests for production of documents, and reviewing motions
for summary disposition and preparing responses to the motions. Under a quantum meruit theory,
the law will imply a contract “in order to prevent unjust enrichment when one party inequitably
receives and retains a benefit from another.” Morris Pumps v Centerline Piping, Inc, 273 Mich
App 187, 194; 729 NW2d 898 (2006). On the basis of Moxie’s invoices, there are genuine issues
of material fact regarding whether Joanna, and thereafter the estate, were unjustly enriched by
Moxie’s provision of legal services without paying Moxie. Indeed, we note that after an
evidentiary hearing in July 2020, the trial court reached a similar conclusion and ruled that Moxie
was entitled to an award of attorney fees and costs under a quantum meruit theory. It was only
after the Hubbards moved for summary disposition in April 2021 that the trial court changed its
ruling and concluded that Moxie had engaged in misconduct that justified dismissal of his claim
for attorney fees.
The trial court relied on Maldonado v Ford Motor Co, 476 Mich 372; 719 NW2d 809(2006), to conclude that misconduct by Moxie required dismissal of his claim for attorney fees. In
that case, our Supreme Court considered “the extent of a trial court’s authority to govern the
conduct of counsel and their clients in court proceedings,” and reiterated that “trial courts possess
the inherent authority to sanction litigants and their counsel, including the power to dismiss an
action.” Id. at 375-376. The Court explained that this power is “not governed so much by rule or
statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.” Id. at 376. The Court further explained a trial
court’s inherent authority to sanction litigants and their counsel, including the power to dismiss an
action, is “rooted in a court’s fundamental interest in safeguarding its own integrity and that of the
judicial process.” Id. at 389 (quotation marks and citation omitted).
In Maldonado, after the trial court ruled that certain evidence was inadmissible, the plaintiff
and her counsel “engaged in a concerted and wide-ranging campaign in the weeks before various
scheduled trial dates to publicize the details of the inadmissible evidence thorough the mass media
and other available means,” and then “continued to do so even after the trial court explicitly warned
them both that such misconduct would result in the dismissal of plaintiff’s lawsuit.” Id. at 392.
Recognizing the “gate-keeping obligation” of trial court to impose sanctions when misconduct
arises, to deter the misconduct, and to serve as a deterrent to other litigants, our Supreme Court
observed that the plaintiff’s counsel flouted several rules of professional misconduct, and both
individuals violated the trial court’s clear directive. Id. at 392, 396.
Moxie asserts that Maldonado involved a series of deliberate acts by the plaintiff and her
counsel to undermine and thwart the trial court’s rulings, and that his actions in this case did not
rise to the level of the “flagrant misbehavior” condemned in Maldonado. Moxie also argues that
the trial court here did not consider whether a less drastic alternative sanction would have been
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effective before the extremely drastic step of completely dismissing his claim for attorney fees. In
relying on Maldonado, the trial court acknowledged that it had previously allowed Moxie’s claim
for attorney fees to proceed, unhindered, but stated that it did not have full knowledge at that time
of the extent of Moxie’s “illicit strategies” to recover attorney fees. The trial court referred to the
motion to disqualify the trial court that Moxie had filed, which the court termed “terminally late
and terminally groundless,” and Moxie’s appeal of the trial court’s denial of that motion to the
chief judge, in which Moxie added charges of actual prejudice against the trial court, which Moxie
had not alleged in his original motion before the trial court. The trial court also found that Moxie
filed a motion to strike the Hubbards’ pleadings in which he misrepresented that the trial court
“did not make any rulings” concerning the admissibility of communications in an e-mail from
Susan Hubbard to Tyler, in which Susan stated that Moxie did not expect any attorney fees. The
trial court found that it explicitly made two rulings regarding this issue, including that the
communications were not subject to the attorney-client privilege, and that, even if originally
privileged, the privilege did not bar this evidence. Therefore, the court invoked Maldonado as
justifying the court’s authority “to go so far as to dismiss actions brought [by] those who thumb
their nose at court procedure.”
Having reviewed Moxie’s motions to disqualify Judge Giovan, Judge Giovan’s opinion
and order denying the initial motion and the chief judge’s decision to deny the motion, and Judge
Giovan’s e-mail communications to the parties, we are not persuaded that this case can be
compared to the highly egregious and obstructionist behavior of the plaintiff and her counsel in
Maldonado, in which the parties deliberately and intentionally flouted the trial court’s clear
directives and the court was left with no choice but to sanction the plaintiff and her counsel for
their repeated unethical conduct. Here, in contrast, even if Moxie can be considered to have been
dilatory in filing his motion to disqualify Judge Giovan, the delay does not rise to the level of
unacceptable and intolerable conduct that would warrant the serious sanction of dismissal of
Moxie’s claim for attorney fees as part of the court’s inherent authority under Maldonado. In
particular, unlike in Maldonado, where the misconduct of repeatedly publicizing inadmissible
evidence was calculated to prevent the defendants from receiving a fair trial and could not be
undone, we fail to understand how Moxie’s motions for disqualifications can be viewed as
prejudicial to the estate’s or the Hubbards’ ability to receive a fair determination of the attorney-
fee issue, or why, to the extent that motions were found to be unpersuasive or lacking in merit, the
drastic sanction of dismissal was necessary as opposed to simply denying the motions, or even
imposing another appropriate sanction short of dismissal if the court believed that the motion was
not well grounded in fact, warranted by existing law, or filed for an improper purpose, MCR
1.109(E)(5) and (6). Additionally, while Moxie did include new allegations of actual bias in his
motion before the chief judge, new circumstances arose after the filing of his original motion
before Judge Giovan, which explained the additions. The record does not otherwise indicate that
Moxie’s pursuit of the motion before the chief judge was motivated by unethical or improper
conduct.
The circumstances in this case are vastly different than the pervasive unethical conduct that
occurred in Maldonado, in which the trial court had twice warned the parties to curb their behavior
and made them aware of the potential consequences of continuing their misconduct. In contrast,
Moxie was not acting to influence the court, jurors, or any other officials by unethical means.
Additionally, there has not been any other showing of attorney misconduct by Moxie in
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contravention of MRPC 8.4. See Maldonado, 476 Mich at 392. In sum, there are genuine issues
of material fact regarding whether Moxie can recover attorney fees under a quantum meruit theory,
and dismissal of Moxie’s claim was not warranted under Maldonado. Accordingly, we reverse
the trial court’s dismissal of Moxie’s claim for attorney fees and remand to that court for further
proceedings on that claim.
III. REASSIGNMENT TO ANOTHER JUDGE ON REMAND
In Docket No. 357997, Moxie also argues that this Court should order this case to be
reassigned to another judge on remand. We disagree.
Moxie’s arguments in support of this request are related to arguments he made in a motion
to disqualify Judge Giovan from presiding over this case, which both Judge Giovan and Chief
Judge Timothy Kenny denied. Thus, it is appropriate to consider that motion and the decisions
denying that motion in evaluating Moxie’s request for reassignment to another judge on remand.
This Court reviews an order granting or denying a motion to disqualify a judge for an abuse
of discretion. Czuprynski v Bay Circuit Judge, 166 Mich App 118, 124; 420 NW2d 141 (1988);
see also In re MKK, 286 Mich App 546, 564; 781 NW2d 132 (2009) (stating that this Court
“review[s] a trial court’s factual findings regarding a motion for disqualification for an abuse of
discretion and its application of the facts to the law de novo”).
In Swain v Morse, 332 Mich App 510, 537; 957 NW2d 396 (2020), this Court stated that
the prevailing concern when considering whether to remand a case to a different trial judge is
whether the appearance of justice is best served if a different judge presides over the case. The
following factors should be considered:
[W]hether the original judge would have difficulty in putting aside previously
expressed views or findings, whether reassignment is advisable to preserve the
appearance of justice, and whether reassignment will not entail excessive waste or
duplication. [Id. (quotation marks and citations omitted).]
“A trial judge is presumed to be fair and impartial, and any litigant who would challenge
this presumption bears a heavy burden to prove otherwise.” Id. (quotation marks and citation
omitted). As this Court recently recognized, reassignment to a different judge is not necessary
even if the trial court reached a wrong legal conclusion, because repeated adverse legal rulings,
even if erroneous, are not disqualifying for the trial judge. Kuebler v Kuebler, ___ Mich App ___,
___; ___ NW2d ___ (2023) (Docket No. 362488); slip op at 30, lv pending.
Judge Giovan erred by dismissing Moxie’s claim for attorney fees because there are
genuine issues of material fact regarding whether Moxie can recover his attorney fees under a
quantum meruit theory and dismissal of Moxie’s claim is not warranted under Maldonado.
Admittedly, the record reflects that Judge Giovan expressed strong views regarding Moxie’s
conduct, such as by referring to his motion to disqualify as “terminally late and terminally
groundless,” and by referring to the “tardiness and vacuity” of Moxie’s attempt to disqualify him
and characterizing it as an effort to lie in wait. While Judge Giovan did use strong language, his
statements are supported by the record, given that Moxie did not file his motion to disqualify until
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February 8, 2021, almost two years after Judge Giovan was assigned the case, and more than a
year after he was assigned to preside over the attorney-fee dispute portion of the case. Moreover,
Judge Giovan presided over the evidentiary hearing on the issue of attorney fees that commenced
in July 2020, and Moxie did not seek to disqualify Judge Giovan at that time. Even when Judge
Giovan ruled on an evidentiary issue pertaining to Moxie’s alleged lack of expectation of payment
for the attorney fees, deciding that issue adversely to Moxie, the issue of disqualification was not
raised. As Chief Judge Kenny noted, the fact that Judge Giovan was a member of the same court
as Susan Hubbard “was no sudden discovery.” Accordingly, Judge Giovan’s and Chief Judge
Kenny’s findings that Moxie’s motion to disqualify Judge Giovan clearly was not timely filed
under MCR 2.003(D)(1)(a) are supported by the record.
In sum, to the extent that Judge Giovan used strong language when disapproving the motion
to disqualify on a delayed basis, his views were shared by the chief judge and have not been shown
to be erroneous or an unfair mischaracterization of the record. Additionally, while Judge Giovan
also expressed strong views regarding Moxie’s conduct, a trial court’s comments directed toward
counsel, the parties, or their cases, even if hostile or critical, generally will not rise to the level of
disqualifying bias. TT v KL, 334 Mich App 413, 432-433; 965 NW2d 101 (2020). Throughout
the lower court proceedings, Judge Giovan remained fair, impartial and unbiased, and nothing
suggests he was not committed to the administration of justice, or that he would have difficulty
setting aside previously expressed views or findings found to be erroneous. Accordingly, we are
not persuaded that reassignment to another judge on remand is necessary to preserve the
appearance of justice.
In a footnote, Moxie asserts, for the first time, that Chief Judge Kenny’s March 26, 2019
order assigning this case to Judge Giovan as a visiting judge is unconstitutional. Moxie concedes
that he never raised this issue in the trial court. Michigan follows the “raise or waive” rule whereby
an issue that is not raised in the trial court generally will be considered waived. Walters v Nadell,
481 Mich 377, 387; 751 NW2d 431 (2008). Accordingly, apart from the fact that this issue is
mentioned only in a footnote, because this issue was not raised in the trial court, it is waived and
we decline to consider it.
IV. IMPOSITION OF SANCTIONS
In Docket No. 359571, Moxie and MacWilliams argue that the trial court erred by assessing
sanctions against them under MCL 600.2591 and MCR 1.109(E)(6). We agree.
“This Court will not disturb a trial court’s finding that an action was frivolous unless that
finding was clearly erroneous.” Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 408;
651 NW2d 756 (2002). Likewise, a trial court’s determination that sanctions are appropriate under
MCR 1.109 is reviewed for clear error. See Lawrence v Burdi, 314 Mich App 203, 220; 886 NW2d
748 (2016) (reviewing an award of sanctions under former MCR 2.114). “A finding is clearly
erroneous if, after a review of the record, this Court is left with a definite and firm conviction that
a mistake was made.” Id.MCL 600.2591 provides:
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(1) Upon motion of any party, if a court finds that a civil action[1] or defense
to a civil action was frivolous, the court that conducts the civil action shall award
to the prevailing party the costs and fees incurred by that party in connection with
the civil action by assessing the costs and fees against the nonprevailing party and
their attorney.
(2) The amount of costs and fees awarded under this section shall include
all reasonable costs actually incurred by the prevailing party and any costs allowed
by law or by court rule, including court costs and reasonable attorney fees.
(3) As used in this section:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the
defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying
that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
Similarly, MCR 1.109(E) provides, in pertinent part:
(5) Effect of Signature. The signature of a person filing a document,
whether or not represented by an attorney, constitutes a certification by the signer
that:
(a) he or she has read the document;
(b) to the best of his or her knowledge, information, and belief formed after
reasonable inquiry, the document is well grounded in fact and is warranted by
existing law or a good-faith argument for the extension, modification, or reversal
of existing law; and
(c) the document is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.
(6) Sanctions for Violation. If a document is signed in violation of this rule,
the court, on the motion of a party or on its own initiative, shall impose upon the
person who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of the
1
MCL 600.1901 provides that “[a] civil action is commenced by filing a complaint with the court.”
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reasonable expenses incurred because of the filing of the document, including
reasonable attorney fees. The court may not assess punitive damages.
With respect to the imposition of sanctions under MCR 1.109(E)(6), the trial court’s ruling
is not entirely clear as to the document or documents that it believed were filed in violation of the
court rule. The court previously stated that it was adopting the reasoning in the Hubbards’ motion
for summary disposition with regard to sanctions, but it subsequently stated that sanctions would
be granted under the court rule (1) for the reasons stated in its opinion denying Moxie’s motion
for disqualification, (2) “for [Moxie’s] subsequent behavior” described in the trial court’s opinion
granting summary disposition, and (3) for the filing of the motion for disqualification in the first
instance.
Preliminarily, we are uncertain about by the trial court’s apparent reliance on the motion
for disqualification as supporting the imposition of sanctions under MCR 1.109(E)(6) when
granting the Hubbards’ motion for summary disposition five months later. In its opinion denying
Moxie’s motion for disqualification, the trial court noted that both the estate and the Hubbards had
requested sanctions associated with the filing of the motion. The court stated that “the request for
sanctions is deferred pending the final result of the motion for disqualification.” The chief judge
denied the motion requesting the trial court’s disqualification on April 15, 2021 and, notably,
denied a request for sanctions associated with that motion. When the Hubbards filed their motion
for summary disposition, they again requested sanctions. Although they referenced in part
Moxie’s motion for disqualification, they principally argued that Moxie’s motion for attorney fees
was itself frivolous and warranted sanctions under MCL 600.2591 and MCR 1.109(E)(6).
Furthermore, although the trial court previously noted that both the estate and the Hubbards had
requested sanctions associated with the filing of the motion for disqualification, and the estate
again requested sanctions in its concurrence with the Hubbards’ motion for summary disposition,
the court expressly declined to award sanctions to the estate.
In any event, the record does not support a conclusion that Moxie’s motion for
disqualification was not well grounded in fact or warranted by existing law, or was filed for an
improper purpose, including to harass another party or cause unnecessary delay. MCR
1.109(E)(5)(b) and (c). While Judge Giovan and Chief Judge Kenny both found that Moxie’s
motion was not timely filed, Moxie filed the motion within 14 days after being advised that Judge
Giovan was assuming Judge Lita Popke’s docket, which he argued made Judge Giovan a colleague
of Susan Hubbard, who also is a Wayne Circuit Court judge and a potential witness in this case.
As Moxie asserted, this assignment placed Judge Giovan in a position whereby he would be acting
as the trier of fact on a case in which another sitting judge was expected to testify as a necessary
witness, which Moxie argued created an appearance of impropriety. In support of his motion,
Moxie relied on Judicial Ethics Opinion JI-57, which states that absent actual bias, a presiding
judge is not disqualified from a matter in which another judge of the same court is testifying as a
witness, if the presiding judge is not the trier of fact, or the testifying judge is not a necessary
witness regarding a contested fact. Although we do not disagree with Judge Giovan’s or Chief
Judge Kenny’s observations that the motion was not timely filed, the record does not support Judge
Giovan’s statement that Moxie was “lay[ing] in wait with the motion” and filed it in an effort to
subvert and undermine the lower court proceedings when he saw that matters were not faring well
for him. Thus, we cannot conclude that the motion to disqualify was filed merely to harass the
trial court, the other litigants, “or to cause unnecessary delay.” MCR 1.109(E)(5)(c).
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The trial court also stated that it was assessing sanctions because of Moxie’s “subsequent
behavior,” which presumably involved his subsequent allegations of actual bias against Judge
Giovan in the motion for disqualification filed before Chief Judge Kenny. However, as stated,
these allegations were based on new circumstances that arose after the filing of Moxie’s original
motion before Judge Giovan, and the record does not otherwise indicate that Moxie’s pursuit of
the motion before Chief Judge Kenny was motivated by Moxie’s unethical or improper conduct.
The trial court also accused Moxie of misrepresenting that the trial court did not make a
ruling regarding an evidentiary matter at a hearing on September 11, 2020. We note, however,
that for reasons unclear from the record, the hearing was not transcribed. Because a record of that
hearing does not exist, we are unable to conclude that Moxie knowingly misrepresented what
occurred at that hearing, even if the trial court’s recollection of the hearing may be different.
In sum, the record does not support the trial court’s finding that sanctions were warranted
under MCR 1.109(E)(6).
We similarly conclude that sanctions were not warranted under MCL 600.2591. Moxie
asserted that he was entitled to a charging lien because he provided legal services, first to Joanna
and then the estate, and had “invested significant time and resources into pursuing the claims in
this litigation” including by reviewing and responding to motions and attending court hearings. In
their motion for summary disposition, the Hubbards challenged the legality of Moxie’s claim for
attorney fees and argued that any contingency-fee agreement was required to be in writing. The
Hubbards also challenged Moxie’s ability to recover attorney fees under a quantum meruit theory,
given that the alleged contingency-fee agreement with Joanna was not in writing, and his claim
did not arise from circumstances in which he had withdrawn from a valid contingency-fee
agreement, or a valid agreement was wrongfully terminated.
The trial court ruled that it was imposing sanctions under MCL 600.2591(1), but did not
identify the subsection of MCL 600.2591(3)(a) that it believed supported the imposition of those
sanctions. Although the parties disputed the scope of Moxie’s role in this case and the nature of
any agreement he had with Joanna, they did not dispute that he rendered legal services on behalf
of the estate. Indeed, following the evidentiary hearing in July 2020, the trial court expressly found
that Moxie “did perform services” and even agreed that, although Moxie could not recover any
contingency fee, he was entitled to pursue a claim for recovery of attorney fees under a quantum
meruit theory.
Therefore, the record does not support a finding that Moxie’s claim for recovery of attorney
fees was devoid of arguable legal merit or was based on facts that he did not reasonably believe
were true. Further, the parties have not contended that Moxie asserted the lien to harass, embarrass,
or injure the estate or the Hubbards. Indeed, the primary basis for the trial court’s decision to
dismiss Moxie’s charging lien was its conclusion that his conduct during the case supported
dismissal under Maldonado, but as explained earlier, his conduct did not rise to the level of the
pervasive unacceptable and intolerable conduct encountered in Maldonado. Accordingly, for the
foregoing reasons, we vacate the trial court’s judgment of sanctions. Given this disposition, it is
unnecessary to address Moxie’s and MacWilliams’s arguments challenging the amount of
sanctions imposed.
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V. CONCLUSION
Because there are genuine issues of material fact regarding Moxie’s claim for attorney fees
under a quantum meruit theory, and the dismissal of Moxie’s claim was not warranted under
Maldonado, we reverse the trial court’s order dismissing Moxie’s claim for attorney fees and
remand to that court for further proceedings on that claim. We also reverse the trial court’s
imposition of sanctions against Moxie and MacWilliams, and vacate the corresponding judgment
for sanctions entered against them. We deny Moxie’s request that this case be reassigned to
another judge on remand.
Reversed in part, vacated in part, and remanded to the trial court for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Michael J. Riordan
/s/ Sima G. Patel
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