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### STATE OF MICHIGAN

COURT OF APPEALS

ALEC DEMOPOLIS,

Plaintiff-Appellee, UNPUBLISHED April 16, 2015

v No. 320099 Macomb Circuit Court MAURICE R. JONES, LC No. 2012-000488-NO

Defendant,

and

ALEXANDER V. LYZOHUB,

Appellant.

Before: H OEKSTRA , P.J., and M ARKEY and D ONOFRIO , JJ.

P ER C URIAM

. Plaintiff’s former counsel, appellant Alexander V. Lyzohub, ap peals by right the trial court’s orders awarding hi m $9,000 in attorney fees and $2,153. 91 in costs from a settlement in a personal injury case and denying his motion for reconsideration . Appellant had sought one-third of the settlement after costs. Because the trial court did not clearly err in finding that no contractual agreement existed and because the trial court did n ot abuse its discretion in determining a reasonable rate for attorney fees under a quantum meruit theory, we affirm.

This appeal arises from an atto rney fee dispute in a personal injury case. Plaintiff, then a minor, sustained an injury while playing basketball on the prem ises of defendant Maurice Jones. Plaintiff’s mother, Judi Demopolis, who was employed by appella nt Lyzohub, served as plaintiff’s next friend. She ori ginally signed a contingency f ee agreement with attorney Todd Weglarz, who filed the personal injury lawsuit on February 2, 2 012. The agreement stated that Weglarz would receive one-third of whatever recovery was obtain ed through the lawsuit plus his costs. On October 23, 2012, a substitution of attorney was fil ed and appellant became plaintiff’s attorney.

The parties agreed to settle t he personal injury suit for $65, 000. Following the settlement, plaintiff, who was by this time 18 years old, remov ed appellant as his counsel over a dispute about whether appellant had agreed to handle the case p ro bono. Plaintiff also demanded-2- that defendant’s attorney not release the settlement check to a ppellant for distribution. The trial court held a hearing to determine disbursement of settlement pr oceeds. Appellant sought onethird of the settlement after costs. He argued that he depende d on his employee, Demopolis, to correctly sign and file a new contingency agreement, but she fa iled to do so. He contended that he was entitled to the benefit of the fee agreement plaintiff h ad with Weglarz or to the terms of the unsigned and unfiled agreement between plaintiff and appell ant.

The trial court noted that the parties disagreed on whether th ere was an agreement that appellant would handle the case pro bono or for a one-third con tingency. The court noted that the Michigan Code of Professional Conduct requires a contingenc y agreement to be in writing, and here it was not. Thus, the court found that no contingency fee agreement between the parties existed. Although there was testimony about the roles each per son performed in the office, it was appellant’s responsibility as the attorney to set forth in writing the fee agreement before undertaking representation. The court also found that there wa s no agreement to perform the work pro bono. Because there was no express agreement, the cou rt determined that appellant was entitled to a reasonable f ee. The court determined that ap pellant’s costs were $2,153.91. Appellant was entitled to a reas onable fee for file preparation , review of medical documents, four depositions, a motion to show cause, a motion to compel, a case evaluation summary, and attendance for 45 hours at $200 a hour for a total of $9,000. The balance of the settlement would go to plaintiff.

On appeal, appellant asserts that he is entitled to a full one -third of the settlement under the principle of quantum meruit, that promissory estoppel appli es, and that the trial court erred in reducing the fee awarded based on the court’s determination tha t Demopolis, as next friend, did half the work on the case.

An award of attorney fees will be upheld on appeal unless the trial court’s determination of the “reasonableness” issue was an abuse of discretion. Jordan v Transnational Motors, Inc
, 212 Mich App 94, 97; 537 NW2d 471 (1995). This Court reviews a trial court’s findings of fact for clear error and its conclusions of law de novo. Glen Lake–Crystal River Watershed Riparians v Glen Lake Ass’n , 264 Mich App 523, 531; 695 NW2d 508 (2004).

Appellant concedes in his brief on appeal that “without an act ive written fee agreement,” he is “entitled to be compensated for the reasonable value of h is service, based upon quantum meruit.” (Emphasis omitted.) Not withstanding that concession, appellant still contends that he is entitled to one-thir d of the settlement.

“The theory underlying quantum meruit recovery is that the law will imply a contract in order to prevent unjust enrichment when one party inequitably r eceives and reta ins a benefit from another.” Morris Pumps v Centerline Piping, Inc , 273 Mich App 187, 194; 729 NW2d 898 (2006). A contract will be implied only if no express contract between the same parties exists that covers the same subject matter. Id. Here, given the lack of any physical evidence, the trial court did not clearly err in fi nding that no express contract e xisted; thus, recovery under a theory of quantum meruit is appropriate. Recovery under quantum merui t is based on the reasonable value of the services rendered—i t is not based on any contractu al amount, unless the parties have agreed otherwise. Plunkett & Cooney, PC v Capitol Bancorp Ltd , 212 Mich App 325, 330-331; 536 NW2d 886 (1995); see also Reynolds v Polen , 222 Mich App 20, 28; 564 NW2d 467 (1997)-3- (“[Q]uantum meruit is generally determined by simply multiplyin g the number of hours worked by a reasonable hourly fee.”).

A trial court’s reasonable fee analysis begins “by determining the fee customarily charged in the locality for similar legal services” for which “ the court should use reliable surveys or other credible evidence of the legal market.” Smith v Khouri , 481 Mich 519, 530-531; 751 NW2d 472 (2008). The customary fee should then be multiplied b y the hours expended. Id. at 531. This is a starting point, and the court should then consi der the “remaining Wood [1] /MRPC factors to determine whether an up or down adjustment is approp riate.” Id. The six Wood factors are as follows:

(1) the professional standing a nd experience of t he attorney; ( 2) the skill, time and labor involved; (3) the amount in question and the results achi eved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. [ Wood v DAIIE , 413 Mich 573, 588; 321 NW2d 653 (1982).]

The eight factors under MRPC 1.5( a), some of which overlap with the Wood factors, are:

“(1) the time and labor require d, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the accepta nce of the particular employment will preclude othe r employment by the lawyer;

(3) the fee customarily charge d in the locality for similar leg al services;

(4) the amount involved a nd the results obtained;

(5) the time limitations impose d by the client or by the circum stances;

(6) the nature and length of t he professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or la wyers performing the services; and

(8) whether the fee is fixed or contingent.” [ Smith , 481 Mich at 530, quoting MRPC 1.5(a).]

In determining reasonable legal fees in this case, the trial c ourt considered that appellant was an experienced attorney, th at Demopolis had done a substant ial amount of work on the case before appellant was retained, that only 20% to 30% of appellan t’s practice was in personal injury law, the relationship between the parties, the costs adv anced, appellant’s labor including motions and pleadings produced, the results, and the complexity of the case. The court

1 Wood v DAIIE , 413 Mich 573; 321 NW2d 653 (1982).-4- determined that an hourly rate of $200 was reasonable under the circumstances, which when multiplied by 45 hours yielded $9,000. The court noted that th is hourly rate was slightly less than the Wayne County median of $230 and the personal injury me dian of $300. 2 Although the determination of reasonable fees is not an exact science, and a court could determine a different calculation of attorney fees, we f ind no abuse of discretion in the determination of this hourly rate. Particularly significant in this case is that when appel lant took over the case, much of the work had already been done by Demopolis. Contrary to appellant ’s argument, the amount of personal injury law he practices i s a factor in determining his skill and as such what a reasonable attorney fee is. Further, the trial court fully considered the labor he expended to determine the amount of time awarded. A review of the entire record shows th at the case was not complicated and no legal issue arose contra ry to appellant’s position. Wit h regard to the factual findings made by the trial court, these d eterminations were proper credi bility and factual determinations made by the court in a contested case primarily decided between the testimonies of two witnesses. Appellant merely seems to disagree with the factual determinations. The trial court was required to weigh all the factors in determining a reasonab le fee and therefore need not award a precise amount as compared to the median. Accordingly, we find no abuse of discretion in the trial court’s determina tion of a reasonable fee in this case.
Appellant next argues that the trial court should have enforce d the intended agreement and awarded him costs plus one-t hird of the remaining settlemen t under the theory of promissory estoppel. Appellant asserts that absent the actions of Demopol is, who was his employee, there would have been an enforceable fee agreement in the file. Appe llant asserts that Demopolis informed him she would sign the agreement draft and file it as part of her duties. I n a promissory estoppel action where the existence and scope of the promise is a question of fact, an appellate court should not overturn a trial court’s determination that a promise exists unless it is clearly

erroneous. State Bank of Standish v Curry , 442 Mich 76, 84; 500 NW2d 104 (1993).

The elements of a promissory estoppel claim are (1) a promise (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee and (3) that, in fact, produced reliance o r forbearance of that nature (4) in circumstances requiring enforcement of the promise if injustice is to be avoided. Booker v Detroit , 251 Mich App 167, 174; 650 NW2d 680 (2002), rev’d in part on other grounds 469 Mich 892 (2003). “A promise is a manifestation of intention to act or refrain from acting in a specific way, so made as to just ify a promisee in understanding that a commitment has been made.” State Bank of Standish
, 442 Mich at 85. In determining whether a promise existed, this

2 Appellant also argues that the trial court cited the wrong rat e from the 2010 State Bar of Michigan (SBM) survey. We agree, but because the error was fav orable to appellant, he has not demonstrated how the error harmed him. The trial court cited t hat the median rate for a Wayne County personal injury (plaintiff) attorney was $300. Contrary to appellant’s argument that a rate of $350 should have been used, the correct median value fr om the 2010 SBM survey shows that Wayne County personal injury (plaintiff) attorneys was $28 8. It is not clear if the court was merely rounding $288 up to $300, but regardless, it is clear th at appellant cannot improve his position based on the corre cted, lower value.-5- Court must objectively examine the words and actions surroundin g the transaction, the nature of the relationship between the parties, and the circumstances sur rounding the parties’ actions. Novak v Nationwide Mut Ins Co , 235 Mich App 675, 686-687; 599 NW2d 546 (1999).

Here, the parties disagreed about whether there was an agreeme nt, with plaintiff asserting that appellant agreed to handle the case pro bono and appellant stating that he was entitled to a one-third contingency fee. The trial court found that there wa s no agreement to indicate either possibility. In reviewing the factual findings of the trial co urt, we find no error in the court’s finding that there was no promis e. This case involved contrast ing accounts by the parties involved without any other evidence. While there was contrary testimony, there was clear evidence that there was not a wr itten, signed agreement to comp ensate appellant with one-third of the settlement; in fact, there was no agreement. The trial court was in a better position to assess the credibility of the parties. Therefore, we find that the trial court’s ruling was not clearly erroneous, and it should not be disturbed. Consequentl y, because the court properly determined that no promise was made to appellant, appellant can not recover on a theory of promissory estoppel.

Appellant lastly asserts that the trial court erred in finding that the contributions of Demopolis on the case justified a half deduction of his fee bec ause she was his employee and worked on the case as part of her employment. Appellant miscon strues the trial court’s ruling. The trial court did not state that it reduced the hours worked by appellant because of Demopolis’s work. When speaki ng of her contribution, the trial court referred to her work on the case before appellant was retained. Further, the extent that o ther individuals contributed to the case outside of his firm was a valid factor to consider when de termining a reasonable fee. The trial court did not clearly err in making this factual determin ation. There was contrary testimony about whether the work Demopolis performed on the case after ap pellant was retained was part of her employment duties. The t rial court was in the best posi tion to assess the witnesses’ credibility, and we find no clear error.

Affirmed.

/s/ Joel P. Hoekstra /s/ Jane E. Markey /s/ Pat M. Donofrio