Opposition Brief — Jarrett v. Green

No. 97-439

In The

Supreme Court of the United States

October Term, 1997

ERNEST L. JARRETT, Attorney,

Petitioner

VS.

ROSE MARY GREEN, ef a/

Respondents

tition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

SAUNDERS V. DORSEY

Counsel of Record

SAUNDERS V. DORSEY

In his own behalf and on

behalf of Edniquech Grubbs

32450 Rock Ridge Road

Farmington Hills, MI 48334

(248) 932-5678

i.

TABLE OF CONTENTS

Page

Table of Contents ...

Table of Citations . UA FE eect TESA Fe | il

Statutes, Rules and Other Authorities Involved iV

Summary of Argument 2220020000000. ccceccccecee | hae

Reasons to Deny Petitioner’s Request for a

Writ of Certiorari

w

Whether the District Court abused its

discretion by maintaining jurisdiction pursuant

to 42 USC $1343(G)? ............................... 3

I] Whether the District Court

abused its discretion by setting

aside the contingency fee

contracts and awarding the

remaining attorneys fees on a

quantum meruit basis? .... 1]

IT] Whether the District Court

judge assumed the role of an

advocate, requiring

disqualification? ......... 24

Conclusion 25

i.

TABLE OF CITATIONS

Federal cases cited:

Arcadia Women’s Health Center v Operation Rescue,

929 F2d 530, 534 (9" Cir 1991) 220. | 5

City of Canton v Harris, 489 US 378, 109 Sct 1197 (1989). 5

Downey v VanderLaan, F3d__; 1994 US App LEXIS

18622 (6 Cir 1994) ooo. oceccccccccccceccceeceeceeceuseeeseeteeseeeee 1]

Grubbs v General Electric Credit Corporation, 408 US 699.

92 Sct 344: 31 Led2d 612 (1972) ......... _§

Gumbel v Pitkin, 124 US 131, 146 (1888) _.... 10

James v Blum, 793 F2d 1292 (6" Cir 1986) ......... 12

Kidd v CSX Transportation. et al.. US Dist

LEXIS 19629 (1990) arene 22

Kokkonen v Guardian Life Insurance, US

114 Sct 1673 (1994) er 10

Morda v Klein, 865F2d 782 (6" Cir 1989) 5

Marchese v Lucas, 758 F2d 181 (6" Cir 1985) ... 5

Monell v Department of Social Services, 426 US 658;

98 Sct 2018 (1978) . 4

Stallman v Distron Corp, 803 P2d 212 (1990) 22

ii.

Thomsen v Terrace Navigation Corp., 490 F2d 88

~~ ee 10

United States v Mansion House Center North, 95 FRD 515

Sa 9

United States v Mercedes Benz of North America, Inc.,

547 FSupp 399, 400 (ND Cal eae 10

State cases cited:

Action Auto, Inc., v Anderson, 165 Mich 620,

419 NW2d 36 (1988), /v den'd, 443 Mich 873 (1988) ....... 13

Alton v Bowman, 198 Ill App3d 329; 555 NE2d 997 (1990) 22

Ambrose v Detroit Edison Co., 65 Mich App 484:

491-492 (1975) 12, 14, 15, 16

Fracase v Brent, 6 Cal3d [784], 789-790: 100 CalRptr [385],

388-389; 494 P2d [0], 12-13 ({1972]) 16

Law Offices of Stockler, P.C. v Semaan, 135 Mich App 545,

RISES ESE a 12

Madison v Goodyear Tire and Rubber Co.. 8 Kan App2d 575.

Be | : 22

Nichols v Pospiech, 289 Mich 324: 286 NW 633 (1939)... 14

lV.

Statutes and Authorities:

Fed R. Civ. P. 41(a)(1) . 1. 7, 8,9, 10

Fed R. Civ. P. 12(b)(6)

Fed. R. Civ. P. 1447(c) eres os 6

Michigan Wrongful Death Statute, MCLA 600.2922 9

MCR 8.121 eas 15

MRPC 1.5S(a) 15

o>)

28 USC, sec. 1343(3)

|

42 USC, sec. 1983

42 USC, sec. 1985(2)(3) 7

42 USC, sec. 1986 7

42 USC, sec. 1988

SUMMARY OF ARGUMENT

The gravamen of Respondent’s argument in this

instant matter is that Appellant, Ernest Jarrett, has acted in

contravention of the Estate’s interest, the interest of other

affected parties, and all involved here before this Court. This

foundational premise is critical to Respondent’s argument

because an understanding of Petitioner’s conduct and own

self-interests elucidates the issues in this matter. First of all,

as the District Court raised in its rulings, Jurisdiction was

proper before this Court from the time of Attorney Brandy’s

filing of her alleged “well-pled” complaint, which set forth

causes of action and claims against all Defendants on federal

jurisdictional bases. A cursory view of the Complaint (R. 10 -

Complaint) clearly establishes this fact alone. From this point,

jurisdiction, although numerously tested and challenged,

withstood any judicial muster or scrutiny. After the

Defendant City of Detroit removed the action, none of the

parties in this case, including this Respondent, ever challenged

the removal or overcame any allegations that removal was

defective. Further, the remand of this case was improper.

Subsequently, Petitioner’s failed attempt at raising a

Fed. R.Civ P 41(a)(1)(i) Stipulation of Dismissal was damnum

and improper from its inception. It failed to comply with the

standards under the rule where only Attorney Brandy, who

was wholly incapable of representing or binding the estate at

that time, and Defendant executed same. On several bases,

the District Court found that it properly had jurisdiction and

properly maintained it throughout the course of the

proceedings. Further, the conduct of the parties acquiesced in

the court’s jurisdiction while simultaneously protesting the

jurisdiction

This Respondent submits that the only reason

l

4

jurisdiction continued to be challenged by Attorneys Brandy

and Jarrett below and why Attorney Jarrett continues to waste

the court’s time arguing this issue now goes back to this

Respondent’s premised argument, that Petitioner is only

acting in his own selfish interests, towards the dereliction of

the interests of everyone else, including and especially

considering, his own client.

This attorney, in large part, entered this case to

prevent and thwart the inimical and inapposite effects of

Attorneys Brandy and Jarrett, after a co-personal

representative clearly saw such damaging efforts and fled to

retain this attorney. The height of Attorneys Brandy and

Jarrett’s conduct was evidenced by co-personal representative

Ms. Grubbs’ discharge of Jarrett and Brandy. However, the

evident shame of their conduct is shown where their only

remaining client, Rose Mary Green, discharged them, citing

her distrust of their behavior.

The other arguments this Respondent submits pertain

to the issue of attorneys fees. And, since the law clearly

addresses this issue, and imposes a valuation of quantum

meruit to determine the remaining distribution of fees, the

only remaining issue is the actual division.

Respondent seeks, that in light of Petitioner Jarrett’s

unethical, outrageous, mad, reprehensible and contemptible

behavicr in the lower court and in this appeal, that his portion

of the attorneys fees be reverted to the estate for an additional

distribution to the estate, including Respondent, Edniquech

Grubbs and her family. Based on the supportive and assertive

factual and legal basis that follows in this Brief, it is submitted

that the lower court’s ruling be adhered to with an Order

reflecting the above modification as set forth herein.

EE

REASONS TO DENY PETITIONERS REQUEST

FOR A WRIT OF CERTIORARI

|. WHETHER THE DISTRICT COURT ABUSED ITS

DISCRETION BY MAINTAINING JURISDICTION

PURSUANT TO 28 USC §1343(3)?

Petitioner has averred in his appeal that the district

court, presided by the Honorable Gerald Rosen, did not and

never had subject matter jurisdiction over this matter because

the only federal claims asserted in Plaintiff s Complaint were

asserted against the individual police officer defendants, who

were never served or appeared in the case. Accordingly,

Petitioner’s argument is that only the individual defendants

could have removed the action.

However, Petitioner’s argument is improperly and

erroneously grounded on the theory that the stipulation for

dismissal. entered into by Attorney Brandy and Mr. Quinn

only, on behalf of the City, effectively relinquished jurisdiction

from the district court. Jurisdiction had, effectively, been

consented to by the interested parties, his own client, and the

overall conduct of the attorneys.

Petitioner’s argument is without merit and not

rounded in the controlling facts and law of this case.

Furthermore, without proceeding to directly address the

governing rules and case law in this matter, it is submitted that

Petitioner’s arguments are no more than mere subterfuge to

mask his selfish interests in pursuing the original requested

attorneys fee amount of 1.2 million dollars and in prohibiting

this counsel from receiving his share of the attorneys fees,

although through oral and written edicts of the district court,

Brandy and Jarrett are not legally entitled to the fees under

their original phallus contingency agreements and,

3

furthermore, the district court has found that Attorney Dorsey

is entitled to the reasonable value of his services, in quantum

merult.

Petitioner’s translucent actions are clearly seen and

evidenced by the structure of his arguments in his appeals and

in his actions in the lower court where he, inter alia, sought

competing jurisdiction in circuit and probate court in

derogation of the interests of other parties, including his

clients, where he constantly worked against the guise of the

district court, where he attempted to prevent this attorney

from critical negotiations with the City Council, and where he

attempted to engage such procedural and ethical flaws as

setting up the escrow account and issued checks in the name

of Rose Mary Green only, who served as only one of the co-

personal representatives.

Petitioner’s actions have been methodical in pursuing

his attorneys fees, either directly or vis-a-vis this feigned

jurisdiction argument.

Petitioner cannot establish that the ‘Removal’ was defective

The applicable law evidencing the weakness of

Petitioner’s argument was set forth in Judge Rosen’s Opinion

and Order dated November 7, 1994. (R. - Memorandum

Opinion and Order, 11/7/94, p. 8). As set forth in Judge

Rosen’s Order, the allegations in Plaintiff's well-pled

complaint under Count IV and V were sufficient to allege a

Section 1983 deprivation of civil nghts claim against the City

under Monell v Department of Social Services, 426 US 658;

98 Sct 2018 (1978); City of Canton v Harris, 489 US 378;

109 Sct 1197 (1989), and Marchese v Lucas, 758 F2d

Se

181(6th Cir 1985), cert. denied, 480 US 916 (1987). '

Further, well-established precedent of United States Supreme

Court cases and the Sixth Circuit Court of Appeals cases in

Arcadia Women’s Health Center v Operation Rescue, 929

F2d 530, 534 (9 Cir. 1991), establishes the general principle

that:

“[t]he relevant jurisdictional question from the

result of these proceedings is not propnety of

removal, but only whether the federal district

court would have had original subject matter

jurisdiction had the case been originally filed in

the federal court.”

The Supreme Court in Grubbs v General Electric

Credit Corporation, 408 US 699; 92 Sct 1344; 31 Led2d 612

(1972), further expounded the general principle. The court

explained:

Long-standing decisions of this Court make

clear, [that] where after removal a case is tried

on the merits without objection and the federal

court enters judgment, the issue in subsequent

proceedings on appeal is not whether the case

was properly removed, but whether the federal

district court would have had original

jurisdiction of the case had it been filed in the

court

' Count V was captioned “Deprivation of

Constitutional Rights by Individual Defendants”, however, it

is critical to note that it incorporated by reference County IV,

“Negligent Training and Supervision,” which was directed

against the City of Detroit, the party who was actually served

and who appeared in this action

i,

In Morda v Klein, 865 F2d 782 (6™ Cir 1989), the

Sixth Circuit adopted the rationale of the Grubbs rule in the

context of a defective removal under federal question

jurisdiction of a RICO action, explaining:

The Grubbs rule is eminently sensible, and

conservative of judicial economy; it prevents a

party who waits until after he loses in the

Court below to object to the jurisdictional

defect from getting a second bite at the apple.

Provided that the district court, as here, would |

have had original jurisdiction had the action

been filed in the first instance in the federal

court and would have had jurisdiction at the

time of final judgment it works no expansion

of federal jurisdiction.

Factually, at no time did the Petitioner raise this

‘defective removal’ argument following the Defendant City of

Detroit’s timely filing of its removal action. As such,

Petitioner is, in essence, estopped now from raising this

defense for failure to satisfy the time limitations under

Fed R.Civ.P. 1447(c).? Moreover, Petitioner never raised this

argument at any time thereafter during the course of the

proceedings.

CO ee ee ee ee

Counsel submits that such action was not raised

during the appropriate time limitation following the City of

* Fed. R. Civ. P. 1447(c) provides

“[a] motion to remand on the basis of any

defect in removal procedure must be made

within thirty (30) days”.

Detroit’s removal because Petitioner believed that he could

obtain an anticipated “stamped” approval of the settlement

and award of originally requested attorneys fees of over a

million dollars. Now, Petitioner seeks to raise this argument

because as the court set forth in Morda, supra, the parties are

attempting to get their second bite of the apple attorneys fees

by divesting the district court of jurisdiction and hoping to

maybe present his request for attorneys fees before a more

amenable court.

The facts in this case are not wholly distinguishable

from the cases relied upon in support of this counsel’s

argument herein. As such, where this action was removed to

the district court on the basis of federal question jurisdiction

under the IV, V, VIII, and XIV Amendments of the United

States Constitution and 42 USC, sec(s), 1983, 1985, 1986

and 1988, the federal district court would have had orginal

federal jurisdiction over this action anyway. Based on this,

Petitioner’s argument is incredulous, and he cannot now argue

that the district court lacks jurisdiction over this case on

improper removal grounds.

Fed. R. Civ. P. 41(a)(1) Stipulation to Dismiss

Petitioner further contends that the submitting of the

January 7, 1993, Voluntary Stipulated Order of Dismissal

pursuant to Fed.R.Civ.P. 41(a)(1)(ii), effectively dismissed the

case and divested jurisdiction from the district court. (R.10 -

Stipulation). Petitioner’s argument fails for two (2) reasons:

First, the Voluntary Order of Dismissal was not in compliance

with the rule it was brought under and secondly, the parties

continued to voluntarily act by their own conduct and actions,

under the aegis of the Court, evincing a contrary

characterization of the status of the case.

Fed.R.Civ.P.41(a)(1) provides, in pertinent part, that

an action may be dismissed “by having all the parties who

have appeared in the action sign a stipulation of dismissal”.

[FRCP 41(a)(1)(ii)] However, the determinative language of

the rule requires that “all parties in the action” sign the

dismissal. This language is literal and does not suggest

interpretation. If we were to accept the continuum of

Petitioner's argument as true, the stipulation is still ineffective

and facially incompliant where it was only signed by Anthony

Quinn, the attorney for Defendant City of Detroit, and

Attorney Brandy only, who, as the record established below

evinces, was not even representing co-personal representative

Edniquech Grubbs at the time of the execution.”

At the time of the filing of the dismissal, Attorney

Thurswell effectively remained co-counsel of record for

Edniquech Grubbs in both her individual and co-personal

* On January 5, 1993, a Proposed Order for

Stipulation of Attorneys was filed by attorneys Brandy and

Thurswell for Edniquech Grubbs, which was never entered

with the Court.

At the 11" hour on January 7, 1993, an Appearance

for Edniquech Grubs was filed by Attorney Brandy. (R.9 -

Appearance). At or around the same time, Attorney

Thurswell’s Motion to Withdraw had not even been ruled on

yet by the Court. (R.3 - Motion). This, in effect, meant that

at the least, Attorney Thurswell’s signature should have

appeared on the Order for Dismissal. The other effect is thai

it limited Attorney Brandy’s capacity and ability to execute

the Order of Dismissal for the ‘parties’ she claim were

necessary. In light of these factors, the Order of Dismissal

was defective and could in no way render effect dismissing the

case or divesting the jurisdiction from the Court

representative capacity. In this regard, he should have also

executed the Stipulation of Dismissal. In the absence of this,

same was defective. Additionally, Attorney Phebus, who

represented Jacqueline Dennison, plaintiff's decedent’s

daughter, had not executed the Stipulation of Dismissal either

and also expressed objections to the entry of the Order.“

In the absence of these attorneys having executed the

Stipulation of Dismissai, maay of the parties, who were

necessary patties to be included in the plain reading of

Fed.R.Civ.P.41(a)(1), in the Michigan Wrongful Death Act,

MCLA 600.2922, and under leading case law such as United

States v Mansion House Center North, 95 FRD 515 (ED Mo

1982).

Where necessary “parties in interest” had not

participated in or had the Dismissal executed by their

respective counsels, the Stipulation was clearly not in

compliance with Fed.R.Civ.P.41(a)(1), hence not giving effect

to the dismissal.

As to their conduct, the parties, including this

attorney, continued under the guise and direction of the

district court as to negotiations, distribution, hearings,

approval of the consent agreement and other essential matters

critical to the resolution of this case. This attorney submits,

that with respect to such conduct by ratification, the parties

should not now be able to bring this jurisdictional argument.

* As of January 7, 1993, Attorney Phebus had not

formally entered his appearance, but had apprised the Court

that he would be engaging same and, he also expressed

objections to the Order on the grounds that his client’s

interests would be greatly affected.

The Court’s “Inherent Powers”

In addition to the sources of authority that were

exercised in the procession of the lower court proceeding, the

Court also had and properly exercised its “inherent powers’.

Judge Rosen, in the Order and Opinion dated May 13, 1993,

stated that a federal court may “exercise it’s inherent powers

to prevent abuse,” and that such power may be, “as extensive

and efficient as may be required by the necessity for their

exercise,” including “exercising its inherent powers to look

behind a stipulation of dismissal to determine whether proper

motive or conduct gave rise to the dismissal.” (R.34 - Opinion

and Order Re: Jurisdiction). United States v Mercedes Benz

of North America, Inc., 547 FSupp 399, 400 (ND Cal 1982),

quoting Gumbel v Pitkin, 124 US 131, 146 (1888); Thomsen

v Terrace Navigation Corp., 490 F2d 88 (2d Cir 1974).

The exercise of this authority was further delineated in

Kokkonen v Guardian Life Insurance, US - 114 Sct

1673 (1994), made clear that a district court could retain

jurisdiction over post-jurisdiction matters if it so provided in

entering the judgment under its inherent powers. The Court

stated:

“(E}]ven when as occurred here, the dismissal is

pursuant to Rule 41(a)(1)(u1) (which does not

by its terms empower a district court to attach

conditions to the parties’ stipulation of

dismissal) we think the Court is authorized to

embody the settlement contract in its dismissal

order (or, what has the same effect, retain

jurisdiction over the settlement contract) if the

parties agree. [114 Sct at 1677].

10

Further, in Downey v_ VanderLaan, F3d 7

1994 US App LEXIS 18622 (6" Cir 1994), the Sixth Circuit

adopted the Kokkonen reasoning that a district court is

authorized to enforce a settlement after entry of judgment if it

expressly retained jurisdiction.

Based on the analysis as set forth, supra, this Court

did expressly retain jurisdiction and the parties, through their

respective representation, in effect, if not by express

acceptance, acceded and/or ratified the jurisdiction of the

lower court. Moreover, the parties often looked to the

deference of the Court in proceedings on several matters.

Although in Kokkonen, the district court retained

jurisdiction after a dismissal had been granted, this fact does

not distinguish the case from our case sub judice, where the

consent agreement operated legally with the same effect,

where it released the Defendant City of Detroit and the named

individuals from the matter and where the proceeds would be

distributed pursuant to post-judgment motions. Any

arguments now by the Petitioner against the jurisdiction of

the lower court are disingenuous, anomalous, and inapposite

to the governing law and evolution of the facts in this case.

Il. WHETHER THE DISTRICT COURT ABUSED ITS

DISCRETION BY SETTING ASIDE THE

CONTINGENCY FEE CONTRACTS AND AWARDING

THE REMAINING ATTORNEYS FEES ON A

QUANTUM MERIUIT BASIS? . :

The Petitioner argues that the reduction of attorneys

fees as outlined in the District Court’s Final Opinion is

improper because of his alleged valid contingency fee

arrangement with the Estate of Malice Green, granting him

1.2 million doiiars. However, based on the laws and facts as

1]

outlined in this case, the District Court held that this argument

was without merit and insupportable, and on the tenets of the

arguments and law submitted in substantive pleading by this

-attorney, ruled that the attorneys fees to be paid to the

remaining attorneys be allocated in quantum meruit, for the

reasonable value of their services.

Under Michigan law, an attorney working under a

contingency fee agreement who is discharged or withdraws is

entitled to compensation for the reasonable value of his

services based on quantum meruit. James v Blum, 793 F2d

1292 (6" Cir 1986); Law Offices of Stockler, P.C v Semaan,

135 Mich App 545, 550 (9184); Ambrose v Detroit Edison

Co., 65 Mich App 484, 491-492 (1975). The attorney is not

entitled to recover under the contingency fee contract, even if

he is wrongfully discharged.

In support of the position that quantum meruit is the

appropriate measure of determining the remaining attorney

fees in this matter, it is necessary to trace the original and

development of the facts in this case regarding the proposed

contingency arrangements and the issues concerning fees.

From the beginning, no valid contingency agreement contract

existed. Neither Ms. Grubbs nor Rose Mary Green signed

their contingency agreements in their representative capacity.

The letters to each of these parties were directed in the names

of “Ms. Ediquech Grubbs” and “Ms. Rose Mary Green”,

respectively, in their individual and personal capacities only.

Further, there were two (2) separate contingency agreement

contracts, each signed separately by the parties, of which

neither purported or even surmised that they were being

entered as “co-representatives” of the estate. Additionally,

neither purported contingency agreement contract was

approved or ratified by the Probate Court.

12

ae ee ee

The !aw is well-established in Michigan that where

two or more qualified persons are named as co-personal

representatives of an estate, the signature of only one of the

co-personal representatives cannot bind the estate, as a matter

of law. Action Auto, Inc. v Anderson, 165 Mich 620, 419

NW2d 36, 38 (1988), /v den'd, 443 Mich 873 (1988). Action

Auto delineated the issue of whether one co-personal

representative, acting alone, could contractually bind the

estate. In Action Auto, Kenneth Anderson, Sr., left a Last

Will and Testament that left some property to his three sons

upon his death. Although all three sons had been named co-

personal representatives of the estate, one of his sons, acting

alone, entered into a contract to sell the property to Action

Auto, a Michigan Corporation. The contract had three

signature blocks for all the co-personal representatives, but it

was only executed by one of the sons.

Action Auto sued for specific performance, requesting

that the court declare the sale valid and binding. The court, in

denying such relief, explained, in part, adopting the Uniform

Probate Code, that:

“(I]f two or more persons are appointed co-

representatives and unless the will provides

otherwise, the concurrence of all is required on

all acts connected with the administration and

distribution of the estate.” 8 Uniform Laws

Annotated, Uniform Probate Code, sec. 3-717,

p. 340 (1983)

The Court further stated:

“We are persuaded by these authorities that

Michigan should also adopt the requirement of

joint action when the will is silent as to the

13

authority of co-personal representatives to act

individually.” See, also, Nichols v Pospiech,

289 Mich 324; 286 NW 633 (1939).

Rose Mary Green and Edniquech Grubbs were both

appointed co-personal representatives of the Estate of Malice

Green by the Probate Court. As such, assent was required by

both parties to bind the estate. And, where based on the

above, both parties did not jointly enter into any binding

agreement for a contingency fee for Attorney Brandy where

they did not have such authority.

In the alternative, an additional basis exists for denying

Petitioner's argument that a contingency fee agreement

existed where in the early part of the proceedings, co-personal

representative, Edniquech Grubbs became dissatisfied with

her representation by Attorneys jarrett and Brandy. As the

district court stated in its opinion, Ms. Grubbs became

dissatisfied with her representation when it became apparent

that Attorneys Brandy and Jarrett were working decidedly in

favor of the Green side of the family in contravention of the

blood lineage of the family. And, starkly in contrast to

Attorney Jarrett’s argument in his appeal that there was no

evidence of Ms. Grubbs expressing objections and concerns

over her representation by appellants, outside of the record

establishing such evidence, it appears self-evident that Ms.

Grubbs had some certain concerns where she sought out the

services of this attorney only four weeks into the litigation. In

support of this, the Court recognized that Edniquech Grubbs

had a right to seek other legal counsel to represent the

estate’s interests on Ms. Grubbs’ behalf and was not bound or

enslaved as the Petitioner’s client. Ambrose v Detroit Edison,

65 Mich App 484 (1975).° Accordingly, once Attorneys

> Ambrose v Detroit Edison, 65 Mich App 484; 237

14

Brandy and Jarrett were discharged by Ms. Grubbs, even if

Petitioner could argue they had a binding written contingency

agreement, it became de jure, invalid at the time of discharge,

where the co-personal representatives were clearly not acting

jointly

Grounded in this same analysis is the corollary, that

once Ms. Grubbs, along with other blood lineage interested

parties, expressed her objections and dissatisfaction with

Petitioner’s representation of her and proceeded to retain this

attorney, Attorney Jarrett’s claim for fee-sharing failed as

well. MCR 8.121, incorporated by reference MRPC Rule 1.5

provides, in pertinent part, that:

A division of a fee between lawyers who are not in the

same firm may be made only if:

1. The client is advised of and does not object to

the participation of all lawyers involved...

z. The total fee is unreasonable.

Without even addressing the second-prong of the rule,

Attorney Jarrett’s fee-sharing agreement clearly fails under the

analysis and facts set forth above.

Summarily, under either analysis discussed above (a.

No valid signed agreement, and b. discharge of counsel),

Petitioner does not have any merit to the argument that he is

entitled to fees under a contingency agreement equating 1.2

million and/or that fee-sharing of same is proper. Hence, as

this attorney has urged and agreed to, the Petitioner is only

NW2d 520 (1976).

15

entitled to fees for the reasonable value of his services, viz.,

quantum meruit. Ambrose, supra.

In Ambrose, the court determined that the discharged

attorney was entitled to the contingent fee percentage agreed

upon with his client prior to discharge. The Court of Appeals,

although agreeing that it was proper to impose a lien on the

settlement, determined that the trial court erred in deciding

that the full contingent fee amount was to be the amount

cuvered by the lien.

The appellant court explained:

[T]he majority view (in Michigan) is 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 quantum meruit, and not the contingent

fee contract. The rationale for that rule was discerned

in Fracase v Brent, 6 Cal3d [784], 789-790; 100 Cal

Rptr [385], 388-389; 494 P2d [9], 12-13 ({1972]);

“The right to discharge is of li..ie value if the

client must risk paying the full contract price

for services not rendered upon a determination

by a court that the discharge was without legal

cause. The client may frequently be forced to

choose between continuing the employment of

an attorney in who he has lost faith, or risking

the payment of double contingent fees equal to

the greater portion of any amount eventually

recovered... Unless a rule us adopted allowing

an attorney as full compensation the reasonable

value of services rendered to the time of

discharge, clients will often feel required to

16

continue in their service attorneys in whose

integrity, judgment or capacity they have lost

confidence.”

Ednigech Grubbs and Rose Mary Green entered into a

contingency agreement with Attorney Brandy wherein

Attorney Brandy and Mr. Jarrett, by way of the purported fee-

sharing agreement, would receive 1/3 of the settlement that

was awarded to the estate. Ms. Grubbs discharged Brandy

and Jarrett early in their attorney/client relationship. In

accordance with the case law, supra, Ms. Grubbs’ agreement

with Attorney Brandy and Jarrett was null and void at that

juncture. The case law speaks clearly on this issue. If Ms.

Grubbs remained bound by her initial contingency fee

agreement, she would essentially be enslaved to the

attorney(s) she no longer trusted in amy capacity.

Michigan has adopted this above rule, as supported by

the district court’s opinion, and thus, the remaining attorneys

should be entitled to fees from the estate of Malice Green in

an amount commensurate with the reasonable value of their

services, i.e. in quantum meruit. And, as will be outlined

more fully, infra, this amount would equal 50% to Attorneys

Jarrett and Brandy (as co-counsels for co-personal

representative Rose Mary Green) at or around an amount of

$400,000.00; and 50% to Attorney Dorsey (as sole attorney

for co-personal representative Edniquech Grubbs), at or

around an amount equal to $400,000.00.

Attorneys Brandy and Jarrett, as co-counsels, initially

represented both co-personal representatives of the Estate of

Malice Green, Rose Mary Green and Edniquech Grubbs,

respectively. Initially, there was an apparent and competing

conflict of interest arising out of Attorneys Brandy and Jarrett

representing both personal representatives because each

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representative represented different competing and contrary

family members, (i.e. Edniquech Grubbs represented the blood

lineage side of the family, while Rose Mary Green represented

the statutory side of the family). Therefore, conflicts and

problems were certain to arise between the competing factions

as did eventuate and come to fruition early on in the case.

Ms. Grubbs thereinafter briefly sought the services of

Attorney Thurswell who soon thereafter waived his

$200,000.00 Estate fee despite his services to the Estate

because of the apparent conflicts that had arisen.

Almost instantly into the case, an offer was quickly,

within weeks of the tragedy, dropped in the lap of the Estate

lawyers per the edict of the Mayor as a surreal form of “riot”

insurance. Immediately thereafter, it became clear to Ms.

Grubbs that Attorney Brandy and Ms. Jarrett were primarily

interested in representing the interests of Rose Mary Green,

and not Edniquech Grubbs and her side of the family.

Consequently, Attorneys Brandy and Jarrett were unable to

successfully reach a settlement with the City of Detroit or

between the interested parties because of the continuing

objections and complaints raised by Ms. Grubbs and the blood

lineage side of the family. Ms. Grubbs’ lack of trust in

Brandy’s and Jarrett’s legal representation of the Estate’s

interest on her behalf was increasing; and, Mr. Jarrett was

incapable of moving the case forward. Upon filing an

appearance, this counsel began setting the case on par

mirroring the ultimate resolution and agreement that resulted

in this matter. First, through negotiations with Brunetta

Brandy, this counsel convinced her to reduce the attorney fee

by $550,000.00 and return the same to the Estate. At a

meeting held in the office of Jerome P. Barney, this attorney

and counsel Barney, in an effort to protect the interests of the

Estate, particularly the blood lineage side of the family, urged

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Brandy to reduce the 1.7 million requested attorney fee by

$550,000.00 by expressing to her the belief that the attorneys

fees as requested were unreasonably excessive and would be

strongly resisted. It was further expressed to Brandy that the

$550,000.00 should be reverted back to the Estate for a more

equitable distribution among the blood lineage side of the

family. Counsels also retorted to Brandy that if she persisted

in seeking the full amount of the originally requested attorneys

fees, that such unreasonable conduct would be brought before

the Court. Brandy, at this time, agreed to reduce the fee to

their now requested 1.2 million dollars.

Prior to this attorney filing an appearance, Attorney

Thurswell was representing Edniquech Grubbs, as co-personal

representative, and at or around the time he was discharged

(four weeks into the proceeding), there still existed only an

offer. Attorney Thurswell, per agreement with Attorneys

Brandy and Jarrett, would have received but for his waiver

thereof, an attorneys fee of $200,000.00 for his efforts on

behalf of the estate. However, Attorney Thurswell did waive

his fee, and at the time this attorney entered his appearance,

this attorney stood in Attorney Thurswell’s position, where

Edniquech Grubbs left Mr. Thurswell and sought the services

of this attorney.

By law, said attorney fee must be paid to this attorney

by virtue of this counsel undertaking the same duties and

responsibilities and more, as estabiished in the record below.

This attorney was not only able to acquire the trust of

Edniquech Grubbs so that they could work together as a

team, but was instrumental in bringing this matter to its

current settlement stage. Prior to this counsel’s involvement,

there was no meeting of the minds among and/or between the

interested parties, and, the possibility of bringing this matter

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to resolution had escaped the interested parties. At the time

of this attorney’s appearance in this case, this case had not

been and could not have been settled because Ms. Grubbs

had objected numerously to the settlement, distrusted Jarrett

and Brandy and basically, was unrepresented by any counsel.

The case could not be settled unless all the interested parties

agreed on an amount, the distribution, and unless the judge

agreed. Further, this attorney had to correct Attorneys

Brandy and Jarrett’s error of having negotiated with the City

of Detroit a structured settlement, where the City’s normal

practice of offering a cash settlement was more appropriate

for the parties in this case, considering their maturity, and by

reason of the difficulty of determining the present value of

structured settlements.

It should be added here that the distribution agreement

was near the penny to what counsel’s recommendations were

once entering this action as evidenced by the numerous

correspondences written to and by counsel. Settlement

through all counsel’s efforts hereunder, was and could have

been only achieved by expending hundreds upon hundreds of

hours negotiating, and meeting with attorneys and the family

members of Malice Green, researching the numerous areas of

law which have been raised as significant issues throughout

this litigation, drafting pleadings, court appearances, and

utilizing several resources at great cost and expense to

counsel.

Furthermore, when this attorney entered this case,

counsel has thereafter worked tirelessly reviewing,

authorizing, ratifying and responding to pleadings filed by

Attorneys Brandy and Jarrett on behalf of the Estate; some of

which placed the Estate in potential jeopardy. Most notable

was the Wnt of Mandamus filed an voluntarily dismissed by

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Mr. Jarrett which delayed the City Council’s approval of the

Consent Agreement for eighteen months. The district court

urged that said approval by the City Council be sought; and

instead of doing so immediately, in order to effectuate the

distribution forthwith, Mr. Jarrett chose to file a frivolous

pleading while the City Council was waiting for over a year to

review the Consent Agreement. Ultimately, Mr. Jarrett

withdrew the Writ of Mandamus and followed the initial

direction of the Court. Other instances of Mr. Jarrett’s

counterproductive, negative, and benign conduct included

seeking competing jurisdiction in the Wayne County Circuit

and Probate court, risking dismissals by Defendant, seeking to

have the escrow account and checks issued thereof only in the

name of Rose Mary Green, contesting jurisdiction at every

avail even when it became apparent that it was diminishing

potential resolution of this matter. Additionally, counsel

Brandy and Jarrett have practically duplicated each other’s

services in an amount exceeding $600,000.00 and even

attempting to represent both co-personal representatives from

the beginning, knowing of the clarity of the conflict of

interest, but all in an attempt to maximize their fees.

Moreover, during this entire litigation process, Mr.

Jarrett has attempted to exclude Ms. Grubbs from making

decisions regarding her interests as co-personal

representatives of the Estate by performing unilaterally and

without authority on behalf of the entire estate when he and

Attorney Brandy only represented half uf the Estate. Now,

Attorney Jarrett is seeking to exclude this attorney, as counsel

for Ms. Grubbs, from obtaining duly owed attorneys fees.

Counsel need not cite how courts fail to recognize or reward

such activity by co-fiduciaries or their attorneys. Counsel is,

in fact, entitled to an amount, in quantum meruit, equal or

greater than the amounts for the attorneys representing co-

personal representative, Rose Mary Green, the actual amount

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to be distributed as $400,000.00 to Attorney Dorsey for his

representation of one-half of the estate and $400,000.00 for

Brandy and Jarrett for their representation of the other half of

the estate, especially when their services were highly

duplicitous and where the majority of their efforts were not

devoted towards the interests of the estate, rather towards

their own self-interests in pursuing the attorneys fees.

The case law provides that an attorney who is

subsequently retained after the discharge of the first attorney

and after an offer of settlement has been made, is entitled to

an equal portion if not more than the first attorney. Kidd v

CSX Transportation, et al., US Dist LEXIS (1990); Stallman

v Distron Corp., 803 P2d 212 (1990); Altman v Bowman,

198 Ill App 3d 329, 555 NE2d 997 (1990); Madison v

Goodyear Tire and Rubber Co., 8 Kan App 2d 575; 663 P2d

663 (1983).

From the inception of this case, only four (4) weeks

after Jarrett and Brandy entered the matter, this attorney met

with the Court, conferenced with all of the interested parties’

attorneys regarding distribution, forced Attorney Brandy to

waive the $550,000.00 of the requested attorney fee or face

being embarrassed in front of the Court by citing that the

attorneys fee was too excessive and that the money was

needed for a more equitable distribution of the shares given to

the blood lineage members of the family. Contrary to

appellant’s assertion, Brandy’s act of waiving the fee was not

a charitable act on her part, but was done at this counsel’s

urgence. Because the amount represented a portion of fees

which this attorney would have been entitled to, this counsel

agreed to waive the fee as well. Additionally, this attorney

greatly assisted in the distribution. The ultimate distribution

had been worked out weeks in advance, initiated by this

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attorney's efforts and suggestion. This attorney’s

recommendation for distribution was near the penny of the

actual distribution reached for all the parties because it was

fundamentally fair

Additionally, this attorney reviewed the offer, changed

lopsided distribution, moved settlement along through the

City Council by correspondence and telephone calls, drafted

and filed Motions to Distribute Funds, thwarted Jarrett’s

procedural moves, including competing parallel jurisdiction

before Judge Mack of the Probate Court and Judge Stacey of

the Circuit Court, which the District Court clearly saw

through as “forum shopping”. This attorney also hire

probate and annuity experts, who carefully reviewed all estate

considerations and were relied upon repeatedly by the lower

Court.

Meanwhile, Jarrett and Brandy, who have opposed

and questioned this attorney’s work in this matter in their

previous appeals, were engaged in excessive and double

billing, client tampering, forum shopping, improper ex parte

communications, unnecessary delay and waste in filing the

Writ of Mandamus, which was later withdrawn 18 months

later, and expending hundreds upon hundreds of hours

towards solely pursuing their excessively requested attorneys

fees. In essence, while this attorney was working for to

protect the estate, Attorneys Brandy and Jarrett, particularly

Jarrett, were working for the preservation and/or status quo

of their originally requested attorneys fees. This is evidenced

by Judge Rosen excluding THREE-HUNDRED HOURS OF

JARRETT’S TIME WHERE THE COURT FOUND THAT

THIS TIME WAS DEDICATED ONLY TO HIS

ATTEMPTS TO COLLECT HIS ATTORNEYS FEES AND

NOT TO THE BENEFIT OF THE ESTATE.

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For the most part, this case was made complex solely

because of Attorney Jarrett’s obdurate attempt to literally rob

from the estate to generate his excessive requested attorneys

fees. It is submitted to this Court that this matter could have

been completely resolved years ago were it not for the

conduct of Attorneys Brandy and Jarrett, and particularly

Attorney Jarrett, by reason of the City’s quick response and

efforts to offer, settle and assistance in working out the

distribution. Absent Jarrett’s obstinate conduct throughout

— the failed attempts at divesting the district court of

jurisdiction, the filing of the Writ of Mandamus, incessant

Motions and attacks upon this Counsel, this matter could have

and should have been resolved earlier. Following this

tyrannical conduct, Petitioner is now the party belaboring this

matter more by the filing of this judicially wasteful appeal.

For this conduct, as outlined herein, counsel Jarrett should be

punished and sanctioned from receiving his fees, allowing his

fees to be directed back to the estate.

Il. WHETHER THE DISTRICT COURT JUDGE

ASSUMED THE ROLE OF AN ADVOCATE IN THIS

CASE, REQUIRING DISQUALIFICATION.

It is submitted that the Court was concerned with

ensuring that the interested parties received a fair distribution

from the settlement.

As can be seen from the preceding arguments, the

District Court judge acted within his discretion.

CONCLUSION

Based on the foregoing analysis and controlling law as

established in the record below and in this brief herein,

Respondent, Saunders V. Dorsey, respectfully requests that

the decision of the United States Court of Appeals, Sixth

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Circuit, be upheld.

Respondent also respectfully requests that the

attorneys fees for Attorney Jarrett be denied and returned to

the Estate for distribution, in light of the highly reprehensible

conduct that has been outlined herein.

Justice Brandeis once wrote that “sunlight is the best

disinfectant.” If this case stands for anything, which this

counsel submits it will for years to come, it should highlight

the fact that the formulae for attorneys fees should not always

be rigidly adhered to and that a co-personal representative, or

any client for that matter, should not be enslaved to a former

attorney who that party discharges with cause.

a Ut er) ACM 10-(i, AT

Saunders V. Dorsey Date

32450 Rock Ridge Road

Farmington Hills, MI 48334

(248) 932-5687

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