Lawsuit Financial, LLC v. Curry

261 Mich. App. 579
CourtMichigan Court of Appeals
DecidedApril 15, 2004
DocketDocket No. 243011
StatusPublished
Cited by68 cases

This text of 261 Mich. App. 579 (Lawsuit Financial, LLC v. Curry) 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
Lawsuit Financial, LLC v. Curry, 261 Mich. App. 579 (Mich. Ct. App. 2004).

Opinion

PER CURIAM.

Plaintiff appeals as of right from the trial court’s order that granted summary disposition to defendants pursuant to MCR 2.116(C)(8) and (10) and dismissed plaintiffs common-law conversion claim against defendant Fieger, Fieger, Kenney & Johnson, PC. Plaintiff, a litigation funding company in the business of making nonrecourse capital advances to litigants in need of funds, had filed claims of breach of contract and conversion against defendant Mary Curry for her failure to abide by the payment terms of their agreements and filed conversion and tortious interference claims against defendant Fieger, a law firm that represented Curry, for failing to disburse to plaintiff certain funds from the litigation proceeds that defendant Curry received from her personal injury lawsuit. We affirm.

I. FACTS

Plaintiff alleges the following in its first amended complaint (complaint). Plaintiff s business makes “non-recourse capital advances” to plaintiffs during the pendency of their lawsuits to cover expenses such as medical expenses, expert costs and fees, investigative expenses, or other costs associated with litigation. The capital advances are contingent because repayment of the advance depends on the successful resolution of the case for which the advance was made. If the client does not recover in his lawsuit, he is not obligated to repay the advance. However, if the client recovers, plaintiff typically receives the return of its advance, plus “an agreed-upon level of profit on its investment.” The advances are not loans because the client’s obligation to repay the advance depends on the successful resolution of a lawsuit.

[582]*582On November 7, 1994, defendant Curry suffered personal injuries resulting from an automobile accident and retained defendant Fieger to sue the allegedly responsible party for damages. In early 2000, during the pendency of defendant Curry’s lawsuit, she approached plaintiff to seek a contingent advance and plaintiff advanced defendant Curry funds on three separate occasions.

On April 19, 2000, plaintiff and defendant Curry entered into a “Transfer and Conveyance of Proceeds and Security Agreement” (agreement) under which plaintiff advanced defendant Curry $75,000 and defendant Curry agreed that, if she recovered in her lawsuit, she would share that recovery with plaintiff according to the formula set forth in the agreement. On July 28, 2000, plaintiff and defendant Curry entered into a second agreement that superseded and replaced the first agreement (first amendment) and plaintiff advanced defendant Curry an additional $100,000. As under the agreement, defendant Curry again agreed that if she recovered money from the lawsuit, she would share that recovery with plaintiff according to the formula set fort in the first amendment. Defendant Curry also signed a lien in plaintiffs favor and signed a notice of the lien that notified defendant Fieger about the assignment of funds to plaintiff and instructed defendant Fieger to follow defendant Curry’s instructions regarding the disbursement of payments to plaintiff.

On October 19, 2000, plaintiff advanced defendant Curry $2,500, and the two parties entered into yet another agreement (second agreement) in exchange for which defendant Curry again agreed to share any monetary recovery with plaintiff. Plaintiff advanced a total sum of $177,500 to defendant Curry and is entitled [583]*583to $887,500 or 10 percent of the proceeds of any recovery in the lawsuit, whichever is greater.

After defendant Curry settled the lawsuit for $4.7 million, plaintiff repeatedly demanded that defendants pay it $887,500 as provided in the agreement. The plaintiff alleged that despite repeated inquiries, defendants have not divulged the status of the funds, defendant Curry has converted the funds for her own benefit, and defendant Fieger has aided and abetted that conversion. The plaintiff further alleged that defendant Curry breached her contract with plaintiff by failing to pay plaintiff the sums due under the agreements and first amendment. In addition, plaintiff alleged that defendant Fieger tortiously interfered with the contractual relationship between defendant Curry and plaintiff and that defendant Fieger committed common-law conversion.

On August 1, 2001, defendant Fieger moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff failed to state a claim for statutory conversion because an action may not be maintained in tort for the conversion of money, Thrift v Haner, 286 Mich 495, 497-498; 282 NW 219 (1938), and because defendant Fieger lawfully came into possession of the litigation proceeds. Defendant Fieger further argued that plaintiff failed to establish a claim of tortious interference because plaintiff failed to allege facts that defendant Fieger did anything wrongful or that it acted lawfully but with malice.

Plaintiff, on the other hand, argued that it did state a claim for statutory conversion. According to plaintiff, it had an absolute and unconditional right to $887,500 of the litigation proceeds, which are specific and identifiable and therefore capable of being converted. Plaintiff argued that defendant Fieger wrongfully and inten[584]*584tionally controlled plaintiffs portion of the funds because it knew about plaintiffs interest in the funds and had express instructions from defendant Curry to transfer $887,500 to plaintiff but failed to do so. Plaintiff further argued that it stated a claim for tortious interference because defendant Fieger was aware that plaintiff had a contract with defendant Curry and it intentionally interfered with that contract by inducing defendant Curry to breach it.

On October 10, 2001, the trial court issued a written order and opinion granting defendant Fieger’s summary disposition motion and dismissing plaintiffs counts for statutory conversion and for tortious interference. In particular the trial court found that plaintiff failed to state a claim for statutory conversion because defendant Fieger lawfully received the judgment proceeds and because property that rightfully comes into a defendant’s possession is not converted just because another claims a right to it. The court also determined that plaintiff failed to establish tortious interference because only a third party to a contractual relationship may be sued for tortious interference and defendant Fieger is defendant Curry’s agent and not a third party.

After plaintiff moved to amend its complaint to assert a claim for common-law conversion, the trial court granted that motion in an order entered on January 22, 2002. Thus, plaintiff filed an amended complaint in January of 2002 adding a claim of common law conversion against defendant Fieger as count VI of the complaint. In the court’s final order, it ruled that there is no cause of action with respect to all of plaintiffs claims against defendant Fieger. Thus, the trial court subsequently dismissed plaintiffs common-law conversion claim against defendant Fieger.

[585]*585On January 31, 2002, defendant Curry moved for partial summary disposition pursuant to MCR 2.116(0(10) on the grounds that the transactions are usurious loans and that plaintiff is seeking annual interest rates ranging from 200 percent and 370 percent, contrary to MCL 438.31, which establishes a maximum legal interest rate of seven percent, and MCL 438.41, which sets the criminal usury rate at twenty-five percent a year.

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Bluebook (online)
261 Mich. App. 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawsuit-financial-llc-v-curry-michctapp-2004.