Island Lake Arbors Condominium Ass'n v. Meisner & Associates, P.C.

837 N.W.2d 439, 301 Mich. App. 384, 2013 WL 3020759, 2013 Mich. App. LEXIS 1101
CourtMichigan Court of Appeals
DecidedJune 18, 2013
DocketDocket No. 307353
StatusPublished
Cited by17 cases

This text of 837 N.W.2d 439 (Island Lake Arbors Condominium Ass'n v. Meisner & Associates, P.C.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Island Lake Arbors Condominium Ass'n v. Meisner & Associates, P.C., 837 N.W.2d 439, 301 Mich. App. 384, 2013 WL 3020759, 2013 Mich. App. LEXIS 1101 (Mich. Ct. App. 2013).

Opinion

FER CURIAM.

Island Lake Arbors Condominium Association hired Meisner & Associates, EC. to prosecute a civil action against Toll Brothers, Inc., the condominium developer and builder. The parties’ written retainer agreement provided for a hybrid compensation arrangement. Island Lake agreed to pay Meisner a reduced hourly rate supplemented by a 12 percent contingency fee, which would be calculated based on the cash value of any judgment or settlement reached with Toll Brothers.

Meisner provided legal services for about 18 months before Island Lake terminated the contract and retained new counsel. When Meisner claimed an attorney’s charging lien, Island Lake brought this declaratory judgment action, asserting that it owed Meisner no additional legal fees.

The circuit court determined that Meisner’s retainer agreement was ambiguous concerning Island Lake’s liability for additional attorney fees and that a jury would have to unravel the contract’s contradictory terms. The litigation against Toll Brothers subsequently settled pursuant to a confidential agreement. [387]*387The circuit court refused to unseal the settlement terms until after a trial resolved the agreement’s ambiguity.

This Court granted Meisner’s application for leave to appeal, and we now reverse the circuit court. The contract unambiguously provides that Meisner is entitled to a contingent share of Island Lake’s recovery. The amount of Meisner’s fee must be decided by applying quantum meruit principles and cannot exceed 12 percent of the total recovery against Toll Brothers, the details of which must be revealed to Meisner.

I. UNDERLYING facts and proceedings

Toll Brothers, Inc. developed and constructed Island Lake and a neighboring condominium property, Island Lake North Bay. In 2008, the Island Lake North Bay Association retained Meisner to sue Toll Brothers for damages arising from alleged construction defects. In 2009, Island Lake retained Meisner to file a similar suit.

Island Lake signed a lengthy retainer agreement drafted by Meisner. Paragraphs 2 and 3 provide for a mixed hourly and contingent fee:

2. HOURLY RATE FEES: In addition to the contingent fee stated below, the Association shall pay to the Law firm for services rendered with regard to the prosecution of its claims against the developer ... the following hourly rate fees which are less than what the Law firm would otherwise seek for its services for such complex and unusual litigation, and which shall remain unchanged through the duration of the litigation:
A. You will be charged for legal services rendered by our attorneys ranging from $225.00 to $285.00 per hour for out of Court time....
[[Image here]]
[388]*3883. CONTINCFiNT FEE: In addition to the hourly rates stated above, which shall not be modified during the course of this representation the Association shall pay the following contingency fee ... to wit: twelve (12%) percent of all actual money, cash equivalents, and “in kind” property, services, values, savings, and/or benefits of any kind realized, paid to, and/or received by the Association ... whether by way of settlement, case evaluation award, arbitration award, judgment.... [Emphasis added.]

Paragraph 10 of the agreement addresses Island Lake’s right to terminate Meisner. It provides that even if new counsel enters the case, Island Lake “nonetheless” agrees to meet its fee obligation to Meisner:

10. OTHER/ADDITIONAL LAWYERS: The Association understands that while it may, as the client, elect or determine to supplement the Law firm with other lawyers or law firms, to replace the Law firm with other lawyers or law firms, and/or to discharge the Law firm at any time, it nonetheless represents and agrees that it shall pay the Law firm all amounts i[t] has agreed to pay under this Agreement, by which it has induced the Law firm to perform services for it. [Emphasis added.]

The retainer agreement also refers to and specifically incorporates a document called “Attachment A.” Attachment A sets forth the “basis, facts, and representations by the Association which underlie and support” the retainer agreement. It continues in relevant part:

In light of the complex and anticipated time-consuming nature of the litigation, the Law firm has offered to represent the Association with regard to litigation on a purely hourly basis; but at a lower rate than those presently stated in the General Retainer Agreement.
[[Image here]]
The Association understands that the reduction and "non-increase” in hourly fees for the litigation, the perma[389]*389nence of the said hourly fees for the litigation are intended to he intertwined with the contingent fee payable to the Law firm with regard to the litigation, which contingent fee itself is substantially and materially lower than what the Law firm has stated it would otherwise seek with regard to the litigation.
[[Image here]]
The Association’s understanding that the Law firm’s prior, present, and future work in organizing and planning for the litigation, in examining various issues, and in preparing and filing the Complaint, are crucial and extremely significant elements of the contemplated litigation and the direction thereof, which entitle the Law firm to full compensation for its efforts in accordance with the provisions of the Litigation Fee Agreement particularly in view of the Association’s understanding and appreciation of:
[[Image here]]
(h) The Law firm’s higher hourly fees and high potential contingent fee(s) that might otherwise be sought or charged with regard to the litigation. [Emphasis added.]

Paragraph 13 of the retainer agreement, titled “Termination,” creates the ambiguity perceived by the circuit court. It describes the mechanics of an attorney-client separation and necessitates payment of fees and costs attendant to “wrapping up our representation”:

13. TERMINATION: If you desire to ask that we cease performing any services for you and/or you otherwise decide to terminate this firm, you must communicate same to us in writing so as to avoid any confusion concerning our representation of you and our instructions in connection therewith. However, it is understood that there will be costs incurred in wrapping up our representation of you should we be terminated or if the firm chooses to terminate our representation of you, which are chargeable billings to you depending upon the reason and source of our termina[390]*390tion. This would include, but is not limited to, the preparation of a Substitution of Counsel and/or Motion hearing and Order of Withdrawal if we are terminated by you, and other costs and time incurred in regard to the transfer and/or closing of the files including collating and copying.

The circuit court construed this language as providing that upon termination Meisner was entitled only to “wind-up fees,” and that this provision conflicted with the contract’s other fee provisions.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anthony L Woodmansee v. William Schmidt
Michigan Court of Appeals, 2022
Christopher D Wyman
E.D. Michigan, 2019
Sylvester Vorus v. Department of Corrections
Michigan Court of Appeals, 2018
the Meisner Law Group v. Weston Downs Condominium Association
909 N.W.2d 890 (Michigan Court of Appeals, 2017)
Wal-Mart Real Estate Business Trust v. Eastwood, LLC
708 F. App'x 857 (Sixth Circuit, 2017)
Kohut v. Ackerman & Ackerman P.C. (In re McInerney)
530 B.R. 671 (E.D. Michigan, 2015)
In re McInerney
528 B.R. 684 (E.D. Michigan, 2014)
Souden v. Souden
844 N.W.2d 151 (Michigan Court of Appeals, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
837 N.W.2d 439, 301 Mich. App. 384, 2013 WL 3020759, 2013 Mich. App. LEXIS 1101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/island-lake-arbors-condominium-assn-v-meisner-associates-pc-michctapp-2013.