morning the morning may it please the court i'm matthew cool look i represent the interested party appellant jeffrey phleger actually the lienholder the fighter from in this matter and this is an appeal from the district court's ruling on plaintiff's motion for determination of lien which we assert are numerous errors by the district court that we hope this court will correct to jump right into arguments because i'm sure the courts will familiar with their briefing in a rather involved procedural history  the district court erred in failing to conduct an evidentiary hearing in this matter that put the cart before the horse and failing to first determine whether had jurisdiction and the extent that it was going to exercise supplemental jurisdiction over  the referring attorney spent on the case and claimed that an evaluation of the time that successor counsel spent on the case was necessary to determine its quantum merit award on a percentage basis in this circumstance the pe amount of time and work that spun the case by dennis stepper prior to the referral which we believe that the fiber firm with the referral agreement is entitled to credit for and payment for in quantum narrowing the fire firms work on the case during its two and a half years of representation  and then also that would be balanced with the work that successor council did on the case to make a percentage basis determination of the split of the net contingent fee in the matter of your your opponent say mr suggested that your side had plenty of opportunity to put in affidavits or statements about that and you didn't do it is that correct or wrong we didn't do it because we had not yet determined whether there is going to be an evaluation well one of the court was actually going to much work on the other side did put in affidavits or proof but did not know we did not because i knew it and just sat around until the court ruled and now you want hearing i certainly don't think that we sat around your honor we decisions are reviewed denoted by the court and the determination as to whether the court would apply quite a marathon and hours multiply by an hourly rate basis which is sort of the more traditional method or on a percentage basis which we believe is far more appropriate here and for which there's ample supporting authority for doing so in which the the fighter from wants done that would be something that the court this court and the district court could reviewed and although the trial courts regularly determine nomination our times you know fee or whatever it might be i believe so your honor because the district court made certain legal determinations in framing how it was going to evaluate the  claim first of all whether it would hold in evidence you're hearing secondly we believe the district court erred in feeling to even mention or consider whether it's quite a merit award determination could be made on a percentage basis we cited ambrose v detroit edison company in one nine hundred seventy five decision of the michigan court of appeals which is a seminal attorney attorney lien quantum arrow a case and there it says that under michigan law district attorney's entitled to choose whether the quantum merit award of attorney's fees done and the palatal case in turn said that the attorney with the lien has the uk has the choice makes the choice whether it's done in hours merrily rate or percentage basis you're saying the way out of follow your president well michigan president in turn referring to determination and i also cited a may two thousand and thirteen unpublished decision from the eastern district of michigan judge their cost pacifically believing niland craft and all those cases acknowledge a determination on a percentage basis appropriate in a case such as this  where both sides have have to reconstruct their hours because this case has been done on a contingency basis all along and so we you know a contingent view tourney's typically don't keep meticulous track of the records because at the end of the day hopefully they're going to get a contingent fee could you explain maybe clarify for me what you're asking this court to do visa v i guess what's called the poison pill agreement that the to end up with that that person and you're asking that we clarify that the district court did not rule on the enforceability of the agreement is that is that the request that's correct your honor the district court indicated that it was only to decide the fighter from quantum aero a claim and we in trying to persuade the court to decline supplemental jurisdiction and allow these issues to be decided by the state court raise the issue of the fact that that we had made some dicta statements about how it may not be an enforceable contract under certain i think all opinions etc but it did not purport to conclusively decide whether it was in forcible or not it did  in for the fire for him he in fact resigned a continued few agreement with which then came to light in their reply brief which then caused us to raise this employment agreement issue so that's why i think it's rather confusing procedurally because new facts kept coming out and it was hard to pin down what was really going on here and what their argument was i believe the district court erred in ruling that the fiber from could not obtain recovery of dentist referral time and effort in quantum aero it which plaintiffs indicated amounted to five and a half years and thousands of hours of work on it found this because the fiber from purportedly did not meet complied conditions precedent of finishing the case and obtaining a recovery and i think that that was error if the fire firm met those conditions and attained a recovery it wouldn't need to see quantum merriment it's kind of an internally inconsistent argument furthermore there was a meeting of the minds in substantial performance by both d and the finder firm on the referral agreement deborah transferred his original file to the photo firm for his exclusive use in all the ones representation going forward obtain mr mother once consent to the referral indicated that once mr mother once signed a contingent figure with the five  and the number of records that sort of argument your honor is that in an insight in agreeing to the referral arrangement dennis definitely gave up his right to that five and a half years and thousands of hours of work and gave it to the fighter for its use going have to finish the case and obtain a recovery we're prevented to do that by the misconduct of the referring attorney if you want the district court defied that that this lawyer was out there conspiring with members of your farm and and stole the case back because that is that what you're presenting those are certainly issues that are that are raised more directly and are breach of referral agreement breach of employment agreement and related tort claims in the in the state courts all we're saying is that in quantum erowid because of the referral agreement we would be entitled to credit for the time of the referring attorney he transferred that case to us gave it to the fire firm said you go forward with that in exchange for that i get one third of whatever you recover you want to get paid for his work because he turned it over to you correct and the consideration for that was one third of any recovery by the fire ok your initial time has expired yet i think you've got three minutes of good morning your honor smith please the court michael does a good morning thank you for having us down here this morning your honor is probably the most important fact that has not been brought out or discussed this morning is the firm stipulated when they entered the chain a substitution of counsel that its right to recover in the case would be based on quantum merit they stipulated to in fact i think there were three stipulations entered by the fire firm that their recovery in the case would be quantum merit ok the fagor from later decided it didn't like it to its chances of recovery in the case if it was going to be based on quantum aero it because its time was so limited in the file so that's not been discussed yet this morning i think it's the most important fact in the whole case they stipulated that they would be recovered on quantum aero it there are agreement with the client mr maule dowen also said if mr maddalena was to discharge the firm that the fi firm would be entitled to recover based on the reasonable value of its services under quantum arrow it they've agreed they agreed to that with their client mr maule dahlan and they agreed to it by filing their stipulations with the district court they  that that's what they want to do and i understand that they've cited the footnote from the ambrose case which cites the pilot case from the southern district of new york it's a footnote in a case from the michigan court of appeals that says this is one way in which to do it that is certainly not it's not presidential it's never been adopted or followed by michigan as the standard this is a very straightforward simple equation of quantum merritt the district court judge lawson said look we were going to apply michigan law the six circuit this court has applied michigan law versus how it in and they said quantum mairowitz did based on hours versus the hours versus a reasonable time that has been expended on the file that's what the district court did in this case now for the fire from to say well we were denied an opportunity to present our evidence and in my brother counsel mentioned this morning that he said in and i wrote it down he said that the fire from contested the hours expended by the attorneys no no they did not defy grapher and did not c test the hours that were expended by the attorneys from the fire from on the file the if in fact they filed three or four supplemental briefs with hundreds of pages of exhibits in briefs and motions and they just kept submitting more and more documents to the court and never in any single one of those filings did they can task the hours they never offered an affidavit that said this is what we believe that the time would be on this file never never once they did in judge lawson pointed this out in his opinion the march eighteenth opinion the second opinion of his which is that issue here and he went through and catalogued all of the opportunities all of the filings that were made by the fire firm and said not once did they offer any competing evidence and judge lawson compared that to the procedures that we use under rule fifty six he was well within his discretion to do that if there wasn't a factual issue that in that had been contested based on the record judge lawson was well within his right to do these matters that you just referenced and they referenced in terms of hours on the marrow and things of that nature they were denied opportunity in that we should remain on this matter so they have an opportunity to come into court and so forth all of these the court in making a determination as to the oath for well the district court discussed that in its opinion the march eighteenth opinion or in the district court said there is been at record evidence submitted by the the attorneys that were that were requesting the lien determination that was submitted in the very first motion for the determination of the lien interests but they said the district court was wrong while i respectfully disagree with the fire from that they were wrong let's let's keep this in perspective first they stipulated that their recovery would be based on quantum merit and now what they're what they're essentially asking is that this be considered a contract claim and in the alternative they're saying well and if it's not a contract if it's not a contract claim then then we want the opportunity to do that they played their cards the way they wanted to play their cards and once they figured out that that wasn't that wasn't going to work out or wasn't beneficial to them they changed their course and yes they did sue all of the attorneys in state court and that case was dismissed  fire from decided it didn't like the outcome or the likely outcome from the federal court they said well let's go sue all of the attorneys now in state court and we'll litigate these issues of conspiracies can conversions they've accused the attorneys including myself of a host of scandalous criminal activity and i do want to mention this because there is a procedural motion that's been pending a motion to strike it should be pointed out that the the lien that was filed in this case was filed by the fire firm the fire law firm filed the lein interest the notice of appeal that was filed in this case was filed by the law firm now on appeal for the first time mr feigner mr geoffrey fieger has asserted himself as the interested party now i'll tell you why i believe he did that because he didn't want to subject himself to an evidentiary hearing at which his credibility was going to be contested based on his his his massive conduct of his misconduct that's been well documented all over the country he didn't want to subject himself to that evidentiary hearing and that's why they that's why they took the position that he wasn't going to certain self as the interested party until we got an appeal and then for the first time mr fire said well i'm not interested party now in this and now i want to strike all of these scandals accusations that have been said about me in the briefs he was never the interested party at the district court so that's just like a play of cards or something for whatever reason he didn't want to subject himself to that at the district court he decided he wanted to do it on appeal and raise it for the first time so i'd just like to address that because we do have that procedural motion out there that was referred to the panel and for your honour's consideration but you have to look at what how this evolved and how they played their opportunities out with the district court and then around the same time ran into state court to sue the attorneys the state court dismissed the action or is judicata i do want to address your argument about what you asked brother council about the poison pill agreement i guess i should call it the employment agreement i think we've all called call it the a poison pill agreement i think judge lawson call it the poison pill agreement the poison pill agreement is an enforceable it is a violation of the rules of ethics and judge lawson commented on that and noted that because he had to dispose of that sense the fire from had raised all of these contract claims specious contract claims if i may call him saul and so judge lawson said this doesn't pass muster with the michigan rules rational conduct there is an ethical opinion out there of the michigan rules of ethics ethical ethics opinion are i dash to forty five it addresses that specific type of agreement down to eighty it is on ethical for whatever reasons that escape me that mr feigner in the fiber firm would want to assert that that contract that particular document is a basis for recovery it is scapes me but again i'm not here to litigate their case but if they're asking the court to use that as  basis i'm asking this court to find that debt agreement is an ethical and violates the rules of professional conduct m r p c five point six it to be and in particular and that has been expounded on in the ethics opinion are i dashed to forty five it goes through this in detail why an opinion of such is an ethical one it treats it takes away the client's right to retain and discharge attorneys now the fire firms approach this entire case as well we w discharge this was a conspiracy not the fiber firm was discharged ok once the five year firm was discharged by the client it really doesn't matter what attorneys represented the client after that i am business partners with mr detmer he had he had  retired he's just celebrated a birthday i won't i won't say which one but he had retired for many years he had helped these gentlemen for ten years these gentlemen that went to prison for twelve thirteen years for a crime they did not commit mr detmer had been working on this file since the early two thousand he had retired for a couple of years as it turns out briefly and now he's returned to the practice of law and has resumed his representation of mr maule doll and after all of the attorneys left the fiber from the experienced a mass exodus of attorneys within six months i was one of them that left i was actually the first one that left but regardless that's not important to the decision before this court mr detmer then began representing mr maule dahlan after of the discovery dozens and dozens of depositions read through all of the trials transcripts of the underlying criminal trials and the district court had that evidence before it was all set forth in affidavits by all of the parties at least the parties that wanted to submit those those the affidavits and the evidence about what was done before what was done during what was done after one this case was at the firm it was essentially on appeal i argued the case here at the six circuit before judge clay judge's catholic judge karen nelson mark i remember it very well it was on appeal it came into the fire from only weeks before the oral argument mr detmer had written all of the briefs he handled the entire case extensively all the way up to that point i remember coming up here and then after that after after the six circuit had issued its rulings the defendants in the underlying case took it up to the u s supreme court it just languished around as we all know what happens with case on appeal on back petitions for rehearing petitions for search your eye to the u s supreme court it was essentially dormant until after it came out of the firm in mr detmer began his representation again of mr model on anyway i think that the issues have been all set forth adequately i feel like i have briefed it's discretionary it's a matter of it's a matter of reviewing an award of attorney fees in the law is clearly established in fact my standard of review quotes a very standard of review from their brief which says a review of it an award of attorney fees is review abuse of discretion i don't believe this case is any different would it also be discretionary in terms of the court holding or not holding an evidentiary hearing in your in your view i believe that would be discretionary and terms because judge l parties to submit evidence as to what the reasonable hourly rate would be and the fire from said well we believe that the hourly rate would be six hundred dollars per hour for this attorney six hundred dollars for this attorney and four hundred seventy five dollars for this in attorney and we said fine we'll accept those  those those amounts in judge lawson adopted that so as to the hourly rate that's not even in dispute now with the hours that work splendid but again this goes back to what judge lawson pointed out in his opinion the fire from never contested that in any of their pleadings and they filed all of the supplemental pleadings with all of the supplemental exhibits and never once did they submit something of any evidentiary value that disputed the hours other than just saying the hours are wrong in the lawyers are lying and they favored they stole our case and this is a conspiracy and this is theft and this is conversion that's what they said that was what they wanted to put before the district court and they had the opportunity and they lost on that particular determination and what we seek is quantum erowid that's correct we don't contest that but we seek quantum now and on a percentage basis we think that detmers pre referral time in this case because of the referral agreement transferred to the determine quantum merit on a percentage basis there is ample legal authority for doing so we did contest the representation of our former counsel's time as self serving on a reasonable we also indicated that we needed to determine what doctors prepare for a time was in the case and we also needed to determine success or counsel's post or time after the fire from was discharged in order for there to be an appropriate percentage basis determination of quantum narrow g and we didn't have the capacity or the ability to find out what detmers pre referral time would be you have to have an evidentiary hearing with testimony to do so or discovery you admit that that the way that the court determined as ours tabs hourly rate is that acceptable by the courts right it is one method but the court didn't even consider or mention the fact that we strongly advocated  pointed out binding authority saying that it's also appropriate particularly in a case like this where it's been handled on a contingency basis for eight or nine years and you're trying to reconstruct a time that is appropriate to do it on a percentage basis it didn't even mention that is that we never even argued and that was a substantial portion of our arguments in our briefs to the trial court if it's discretionary review then if the court sad why against another that that's acceptable that's discretion right well without i don't believe so if it doesn't even consider the fact that there's this other option out there which i don't which is it apparently with the trucker did because there was never a mention of the percentage basis of quantum merit determination also in our standard review we cited numerous questions of law that the trial court had to make the legal framework for its decision which we think were in error and those who reviewed did over finally well actually not quite finally brother counsel indicated that geoffrey fieger asserted himself as an interested party in this case on the appeal of the matter that's not the case at all we filed a claim of appeal as the flavor firm which was the same party that asserted its lien interest in the trial court and it was the sixth circuit clerk   thank you very much the case will be submit it and you may call the next case