Petition for Writ of Certiorari — Dietrichich & Associates v. Rogers (No. 06-91)
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Supreme Court, U.S.
(I) P FILED
No. 96-91 MAY17 2006
INTHE OFFICE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
DIETRICH & ASSOCIATES, P.L.C..,
PETITIONER
Vv
CAROLYN ROGERS,
GEOFFREY FIEGER, and
FIEGER, FIEGER, KENNEY & JOHNSON, P.C..,
RESPONDENTS
ON PETITION FOR WRIT OF CERTIORARI TO
THE MICHIGAN SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
Catherine Coash
Attorney for Petitioners
15001 Charlevoix, Grosse Pointe Park,
MI 48230
(313) 821-892)
. me
*C'nunsel atrecara
BEST AVAILABLE COPY
All parties appear in the caption of the case on the cover
QUESTION PRESENTED
Whether the Michigan Court of Appeals’
conclusion that the doctrine of res judicata
barred Petitioner's suit was inconsistent with
Petitioner's fundamental federal right of due
process pursuant to the Fourteenth
Amendment; this extreme application of res
judicata) was inappropriate — because
Petitioner’s suit was independent from the
prior litigation?
LIST OF PARTIES
page. The parties to this petition are:
e Dietrich & Associates, PLC. Petitioner
e Carolyn Rogers, Respondent
e Geolfrey Fieger, Respondent
e lieger. Fieger, Kenney & Johnson.
Respondent
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 29.6. Petitioner states as follows:
Petitioner is not a corporation that has issued shares to the
public, nor is ita parent corporation, a subsidiary or affiliate
of corporations that have done so.
Me
TABLE OF CONTENTS
Of ONT SCR LR
DO ITT LTD PETES DOTTIE SS 2
Constitution Provisions Involved ...........00.....cccecccee0e- 3
TE CE TF voiiccestsisatsicitkiccicstebebicacsenonis 4
Reasons for Granting the Petition ...............::c:ceeeee0 8
I The Michigan Court of Appeals’ conclusion
that the doctrine of res judicata barred
Petitioner’s suit was inconsistent with
Petitioner’s fundamental federal right of due
process pursuant to the Fourteenth
Amendment; this extreme application of res
judicata) was inappropriate because
Petitioner’s suit was independent from the
prior litigation.
ON a a a ee 15
INDEX TO APPENDICES
APPENDIX A
Decision of the Michigan Court of Appeals
BET ar ey GR TREE CIE vessiciicissicccectentdcrsinatsonentacbions la
APPENDIX B
Decision of the Michigan Supreme Court
denying Painter’s application for leave to appeal ..... 5a
APPENDIX C
Order of the Michigan Supreme Court
denying Petitioner’s motion for reconsideration....... 6a
APPENDIX D
The Due Process Clause of the Fourteenth
PRO noise ce eee REE aeRO AAR MOOT AL eee OE 7a
\V.
Appendix E
Complaint in Dietrich & Associates v Rogers ......... 8a
Appendix F
Text of Michigan court rule MCR 2.612 0.0.0.0... 24a
Appendix G
Trost v Buckstop Lure Co, Inc,
249 Mich App 580; 644 NW2d 54 (2002)................ 26a
TABLE OF AUTHORITIES
CASES PAGE
; NUMBER
Adair v State,
470 Mich 105; 680 NW2d 386 (2004)... eee 10
Logan v Zimmerman Brush Co,
455 US 422;
1025 S Ct 1148; 71 L Ed 2d 265 (1982)... 8
Phinisee v Rogers,
229 Mich App 547; 582 NW2d 852 (1999)... 10
Postal Telegraph Cable Co. v. Newport,
247 US 464, 475;
38 S Ch 506; G2 L Ed 2d 1215 (E916) ..cccccrvscsocesuscsse 8
Richards v Jefferson County, Alabama,
517 US 793;
116 S Ct 1761; 135 L Ed 2d 76 (1996)...................... 8
South Central Bell Telephone Co v Alabama,
526 US 160;
119 S Ct 1180; 143 L Ed 2d 258 (1999)... 8
Trost v Buckstop Lure Co, Inc,
249 Mich App 580; 644 NW2d 54 (2002)... passim
Viele v DCMA,
167 Mich App 571; 423 NW2d 270 (1988).............. 10
STATUTES AND RULES
Re Se atoin dnc woiniecietaapcaneetoianetoaageston 2
AF eyo) WRC EREER SIERO RONEN Ry Beet passim
OTHER
Fourteenth Amendment
United States Constitation........csccsccssrorssessereesoseesesees passim
Michigan Court Rules Practice .0....0....ccceesseseeeeeees 13
IN THE |
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to
review the judgment below.
OPINIONS BELOW
The opinion of the Michigan Court of Appeals, (Dietrich &
Associates, v Rogers, an unreported decision of the Michigan
Court of Appeals, docket number, 250702, released January
27, 2005)), the highest court to review the merits appears at
Appendix A to the petition and is unpublished.
The order of the Michigan Supreme Court denying
Petitioner's application for leave to appeal (Dietrich &
Associates v Rogers, 474 Mich 898; 705 NW2d 113 (2005)),
appears at Appendix B to the petition.
The order of the Michigan Supreme Court denying
Petitioner’s motion for reconsideration of its denial of leave
to appeal (Dietrich & Associates v Rogers, 474 Mich 1065;
711 NW2d 299 (2006)), appears at Appendix C to the
petition.
» »ASDICTION
The Michigan Supreme Court entered its order denying
Petitioner’s timely application for leave to appeal from the
Michigan Court of Appeals on February 27, 2006. A copy of
that decision appears at Appendix C.
The jurisdiction of this Court is invoked under 28 USC
1257(a). Under 28 USC 1257(a), this Court may grant a
petition for a writ of certiorari to review any case “where any
title, right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes of,
or any commission held or authority exercised under, the
United States.”
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves Section | of the Fourteenth Amendment
to the United States Constitution (Appendix D), which
provides in relevant part as follows:
No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
state deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.
STATEMENT OF THE CASE
This case arises out of the horrible and unfortunate
circumstances that left a woman without her husband and an
unborn child without her father. John Rogers was an
esteemed associate at Petitioner’s law firm for over 11 years.
(Dietrich & Cassavaugh P.C. was a Predecessor to Dietrich
& Associates PLLC). Mr. Rogers was on his way to court
when a tragic auto accident occurred, wherein he was killed
by drivers of a vehicle that was evading the police in a high-
speed chase in the city of Detroit.
In the years following Mr. Rogers’ death, Petitioners
helped Mrs. Carol Rogers with the settling of her husband’s
estate and handled two causes of action obtaining a sizable
amount of ($450,000.00) under the Rogers’ uninsured
motorist insurance coverage as well as obtaining monetary
Worker’s Compensation benefits. The | Worker’s
Compensation benefits provided an income to Mrs. Rogers
over a ten-year period. No fee was ever charged for any of
this work, although it was understood that a fee would be
paid from a prospective wrongful death case. In addition,
Petitioner spent an extensive amount of time counseling and
aiding Mrs. Rogers through this difficult period in her life.
Petitioner conducted extensive and in depth legal and
investigative work in connection with these two cases as well
as the wrongful death suit against the City of Detroit.
After conducting an _ extensive investigation
concerning the wrongful death cause of action, Petitioner had
extensive discussions with Carolyn Rogers, the Personal
Representative. Rogers authorized the retention of Geoffrey
Fieger and his firm as trial counsel. She also authorized one
third of the total recovery be paid for total legal services. It
was further agreed that Petitioner would continue as co-
counsel and receive one third of the total legal fee. The
Dietrich firm was copied on the pleadings as co-counse] and
Edgar Dietrich, principal of the firm conducted settlement
discussions with the City of Detroit..and the client. The
relationship between Petitioner and Fieger was further
confirmed by letters from Fieger verifying the authorized fee
relationship wherein Petitioner would receive one third of
the total fee of any recovery from the wrongful death suit
and Fieger and his firm would receive two thirds. The letters
confirming this relationship were written and signed by
Fieger.
Fieger proceeded to file a wrongful death suit on
behalf of Carolyn Rogers. The Rogers v City of Detroit case
was tried by a jury resulting in a verdict of about $6,000,000
that with interest rose to in excess of $9,000,000 by the time
it was paid. The jury verdict was confirmed by the Court of
Appeals and upheld by the Michigan Supreme Court at 457
Mich 125; 579 NW 2d 840 (1998).
Petitioner requested that Fieger honor his obligation
to pay approximately $1,000,000 due under the attorney fee
agreement. Fieger without explanation refused payment and
dared Petitioner firm to file suit. Petitioner then filed suit
against Fieger: Dietrich & Associates, PLC v Geoffrey
Fieger et. al., Wayne Circuit Case 98-837522 CK. Fieger
moved for summary disposition. The trial court granted
summary disposition. The improprieties committed by Fieger
and the trial court with regard to summary disposition were
set forth at paragraph 58 of Petitioner’s complaint in the
instant action.' Complaint attached as Appendix E.
1. Paragraph 58 of Petitioner’s complaint in the case at bar set
forth the following improprieties in the Dietrich & Associates v Fieger
case:
a. Granting summary disposition of said action when the Fieger
Defendants were in default and not properly before the court;
b. Granting summary disposition absent the present of record of
supported evidence;
c. Granting summary disposition based upon the fraudulent
statements and misrepresentations of the Fieger Defendants;
d. Granting summary disposition based upon the improper
assignment of the duty to disclose the compensation agreement
to client solely upon Plaintiff whereas it was required to be
_
The Michigan Court of Appeals in an unpublished
decision dated December 28, 2001, Docket 224870, upheld
the Wayne County decision.
Petitioner’s complaint in this case was brought in part
under the independent action provisions of MCR 2.612(C)(3)
(attached as Appendix F), pursuant to the reasoning of Trost
v Buckstop Lure Co, Inc, 249 Mich App 580; 644 NW2d 54
(2002). (Trost, attached as Exhibit G). The complaint
included allegations of fraud, conspiracy, tortious
interference with contract, unjust enrichment, promissory
estoppel, breach of contract and conversion.
Unlike Dietrich & Associates, PLC v Geoffrey Fieger
et. al., Wayne Circuit Case 98-837522 CK, the case at bar
named Carolyn Rogers as a party and alleged that she
cooperated and conspired with Fieger in depriving Petitioner
of its compensation.
Respondent filed a Motion for Chakee of Venue, or
in the Alternative, Motion to Dismiss (Motion for Summary
Disposition). Judge Colleen A. O’Brien of the Oakland
County Circuit Court granted Respondent’s motion on tne
basis of res judicata, ruling that the present suit was barred
shared between the Fieger Defendants and the Plaintiff (See
Informal Ethics Opinion. R-I-234 dated May 10, 1995);
e. Granting summary disposition based upon the improper
application of the provisions of the Michigan Rules of
Professional Conduct;
f. Granting summary disposition without permitting the Plainuff to
obtain discovery which would establish the basis for the
recovery sought;
¢g. Granting summary disposition in spite of the existence of a
contract between the parties;
h. Granting summary disposition when it was known to the Court
that doing so would serve to subject the Plaintiff to substantial
damage and inequity.
i. Other items that will be determined during the course of
discovery and investigation in this matter. (Complaint, attached
as Appendix E).
by the Dietrich & Associates, PLC v Geoffrey Fieger suit.
Judge O’Brien’s Order of Dismissal was entered August 8,
2003.
Petitioner filed a claim of appeal of right to the
Michigan Court of Appeals on August 25, 2003. On appeal,
Petitioner argued that res judicata could not bar the suit
because the suit was an independent action supported by
MCR 2.613 and Trost. On January 27, 2005, the Court of
Appeals affirmed the trial court’s grant of summary
disposition. (Appendix A). The Court of Appeals ruled that
Trost applied only to a judgment against a defendant, and not
to one against a plaintiff. Despite the allegations of fraud, the
Court of Appeals ruled res judicata defeated Petitioner’s
claim; thereby denying Petitioner an opportunity to show the }
existence of fraud in an independent action pursuant to MCR
2.612(C)(3) and Trost. }
On March 10, 2005, Petitioner filed an application
for leave to appeal to the Michigan Supreme Court. The
Michigan Supreme Court denied the application for leave to
appeal on October 31, 2005. (Appendix B). Petitioner then
sought reconsideration of the Michigan Supreme Court’s
ruling with a motion for reconsideration filed November 17,
2005. The Michigan Supreme Court denied the motion for
reconsideration on February 27, 2006. (Appendix C).
Petitioner now files this petition for writ of certiorari.
REASONS FOR GRANTING THE PETITION
I. _ The Michigan Court of Appeals’
conclusion that the doctrine of res
judicata barred Petitioner’s suit was
inconsistent with Petitioner’s
fundamental federal right of due
- process pursuant to the Fourteenth
Amendment; this extreme
application of res jud.cata was
inappropriate because Petitioner’s
Suit was independent from the prior
litigation.
The Due Process Clause of the federal constitution
protects Petitioner’s right to invoke the processes created by
state law for the enforcement of rights. It is true that state
courts may generally develop their own rules for protecting
against the relitigation of common issues. Postal Telegraph
Cable Co. v. Newport, 247 US 464, 475; 38 S Ct 566; 62 L
Ed 2d 1215 (1918). However, the extreme application of the
doctrine of res judicata may be inconsistent with a federal
right. Richards v Jefferson County, Alabama, 517 US 793;
116 S Ct 1761; 135 L Ed 2d 76 (1996), see also South
Central Bell Telephone Co v Alabama, 526 US 160; 119 S
Ct 1180; 143 L Ed 2d 258 (1999). An extreme application of
res judicata will be barred if it deprives the party of the due
process of law guaranteed by the Fourteenth Amendment. In
the instant case, the Court of Appeals affirmance of the
dismissal of Petitioner’s suit on the grounds res judicata
deprived Petitioner of its rights to due process under the
Fourteenth Amendment.
This Court historically has recognized that the federal
constitution protects access to the judicial processes
established by the states. In Logan v Zimmerman Brush Co,
455 US 422; 1025 S Ct 1148; 71 L Ed 2d 265 (1982), the
Court noted that it “traditionally has held that the Due
g
Process Clauses of the Fifth and Fourteenth Amendments
protect civil litigants who seek recourse in the courts, either
as defendants hoping to protect their property or as
Petitioners attempting to redress grievances.” Jd. at 429. The
protection emanates from the understanding that the Due
Process Clause creates a constitutionally protected interest in
access to a forum created by the state for such purposes. In
the instant case, the rulings of the trial court, Michigan Court
of Appeals and Michigan Supreme Court prevent Petitioner
from having a forum in which to litigate its rights.
The frial court and the Michigan appellate courts
failed to recognize that Petitioner’s present suit was an
independent action raising different allegations than the prior
suit. Further, the trial court and the both courts ignored that
this litigation included a different party, Carolyn Rogers as a
defendant.
The complaint in this suit alleged causes of action
arising from the relationship between Carolyn Rogers and
Fieger, including conspiracy, tortious interference with
contract, quantum meruit, and unjust’ enrichment.
(Complaint, attached as Appendix E). These allegations were
not involved in the prior suit. Res judicata applies only if a
new case is on the same subject matter and is between the
same parties or their privies. Because Petitioner’s action was
an independent action from the first suit, the doctrine of res
judicata may not defeat the action. This second suit raised
different causes of actions and added a new party as
defendant. The Court of Appeals’ affirmance of the use of
res judicata to defeatPetitroner’s independent action has
violated Petitioner’s right to due process under the ~
Fourteenth Amendment.
The Michigan courts’ extreme application of the
doctrine of res judicata in this case was inconsistent with
Petitioner’s right to due process under the Fourteenth
Amendment. While this action might raise issues similar to
those in Dietrich & Associates, PLC v Geoffrey Fieger, et al,
Wayne County Circuit Court Case No. 98-837522-CK,
"
Carolyn Rogers was not a party to that case. Therefore, she is
not entitled to the protection of res judicata.
One of the requirements for the imposition of the
doctrine of res judicata is that the prior suit be between the
same parties or their privies. Adair v State, 470 Mich 105;
680 NW2d 386 (2004). Privity between a party and a non-
party requires both a substantial identity of interests and a
working or functional relationship in which the interests of
the non-party are presented and protected by the party in the
litigation. Phinisee v Rogers, 229 Mich App 547; 582 NW2d
852 (1999). There is no privity between Fieger and Rogers in
respect to the fee dispute between Dietrich & Associates and
Fieger.
Fieger’s interests are not the same as those of
Carolyn Rogers in respect to a fee dispute. In this suit,
Respondent Fieger had an interest in recovering and keeping
the full attorney fee and defeating Petitioner’s lawful
attorney fee claim, Carolyn Rogers would not necessarily
have the same interest. Put succinctly it would cost Carolyn
Rogers nothing for the claimed attorney fee to be~paid to
Petitioner whereas it would cost Respondent Fieger one
million dollars to pay this fee.
As is stated in Viele v DCMA, 167 Mich App 571;
423 NW2d 270 (1988): “there is’ no general prevailing
definition of privity, it has been described as including a
person so identified in interest with another that he or she
represents the same legal right.” It does appear to be clear
that as one reason for the application of res judicata to apply
notice must be given the intended privy:
A prerequisite to a party’s ability to involve
the doctrine of res judicata in a subsequent
proceeding is that the party must have given
adequate notice of the prior proceeding to the
persons who are to be bound by the
adjudication. Viele, supra at p.582
There is no evidence that Carolyn Rogers was notified of the
Dietrich & Associates v Fieger case.
1S
Finally Petitioner’s complaint alleged causes of
action arising from the relationship between Carolyn Rogers
and Fieger including conspiracy, tortious interference with
contract, quantum meruit and unjust enrichment which either
are claims as to Carolyn Rogers alone or are against Rogers
and Fieger acting together. (Appendix E). These allegations
were not involved in prior litigation and were not relevant to
the prior litigation without the presence of Carolyn Rogers.
The Court of Appeals’ affirmance of summary
disposition has precluded Petitioner from having an
opportunity to be heard in the matter. The due process clause
of the Fourteenth Amendment requires that Petitioner have
its day in court in this-matter. The Michigan Courts’ rulings
applying res judicata to defeat Petitioner’s suit violated
Petitioner’s right to due process.
Further, the rulings by the trial court and appellate
courts in this matter completely abrogates the concept of an
independent action validated by MCR 2.612 and Trost. In
Trost v Buckstop Lure 249 Mich App 580; 644 NW2d 54
(2002), (Appendix G) the Court of Appeals established a
five-part test for whether a subsequent suit was a proper
independent action. This five-part test provides that:
1) The Judgment is one that ought not, in
equity and good conscience, be
enforced.
2) There is a valid claim or defense to the
alleged cause of action on which the
judgment is founded.
3) Fraud, accident, or mistake prevented
the Defendant from obtaining the
benefit of the defense.
4) There was no negligence or fault on
the part of the Defendant.
5) There is no adequate remedy available
at law.
i
Petitioner asserts that its complaint meets Michigan’s
standards for an independent action. Firstly, it is certainly not
equitable that Petitioner receive no compensation for its
services when it did the original work on the wrongful death
action, obtained a $450,000 uninsured motorist award, and a
worker’s compensation recovery, while Fieger retains the
entire attorney fee. This is especially true since Petitioner
remained an attorney of record after bringing Fieger into the
wrongful death suit.
Secondly, Petitioner has asserted a valid claim. (The
one million dollar contracted share of attorney fees).
Thirdly, Petitioner has alleged fraud and
misrepresentation in connection with the previous
proceedings (Fieger wrote letters confirming the attorney fee
agreement and represented that permission had been
obtained.)
Fourth, there is no negligence by Petitioner.
Finally, fifth, Petitioner has no adequate remedy at
law.
While Trost clearly involved an independent action
filed by a defendant seeking relief from a judgment imposed
on him, there is no reason articulated by the Court of
Appeals as to why this same remedy ought not to be
available to a plaintiff against whom a judgment has been
rendered. Plaintiffs and defendants can both have judgments
rendered against them for which some relief, in limited
circumstances ought to be available. The Court Rule
contemplates fraud as being one of those circumstances.
There is no reason to anticipate that a plaintiff is less likely
than a defendant tc oe victimized by a fraud on the court.
Nevertheless, the Court of Appeals, by its rulisg, simply
dismisses the possibility that a plaintiff might be able to seek
such a remedy as was recognized in Trost.
The remedy is explicitly recogn..e¢ in the MCR
2.613(C)(3):
(C) Grounds for Relief from Judgment.
ea
(3) This subrule does not limit the power of a
court to entertain an independent action to
relieve a party from a judgment, order, or
proceeding; . . . or to set aside a judgment for
fraud on the court. MCR 2.613(C)(3)
attached as Appendix F.
The Court Rule makes no distinction between
plaintiffs and defendants, and there is no articulated reason
in the Court of Appeals opinion for this distinction.
Moreover, the 7rost court found this commentary on the
Rule to be “particularly persuasive”:
Relief from a judgment by an independent
equitable action has been recognized in
Michigan as proper on numerous grounds,
including the following: judgment void for
lack of jurisdiction; newly-discovered
evidence; after-discovered defense; and
extrinsic fraud in the procurement of a
judgment. If the judgment is not void for lack
of jurisdiction, the party seeking relief from a
judgment by an independent equitable action
must show that it has a meritorious defense or
cause of action before equitable relief will be
given. Michigan Court Rules Practice, Rule
2.612, § 2612.17, p 483 (citations omitted;
emphasis added).
Thus, the Trost court itself noted that its reasoning
ought to apply to both plaintiffs and defendants. There is
really no reason to expect that defendants are any more
likely to be affected by a fraud worked upon the court than
are plaintiffs
The procedure of an independent action to relieve a
party from the effects of a judgment can only be invoked
after judgment has issued. It should be obvious that if res
judicata can be used to defeat a party seeking a remedy under
this rule, then the rule is a nullity:
interpretation, the court rule provides an avenue for a suit,
\S
Under this flawed
however the trial court and appellate courts in this matter
_have completely nullified the mght to suit. The Michigan
courts’ refusa] to permit Petitioner to raise the independent
action because of res judicata deprived Petitioner of the due
process of law guaranteed by the Fourteenth Amendment.
By ruling Petitioner’s action was barred, the
Michigan Courts have prevented Petitioner from any
opportunity for hearing on the claims of the second suit,
including the claims of fraud. Petitioner’s complaint made
allegations of fraud giving rise to the right to seek relief in an
independent action.
\Y
CONCLUSION
For the foregoing reasons, Petitioner respectfully
requests that this Court grant the petition for writ of
certiorari. :
Respectfully sabmitted
| OX Yar
see Z/ : | OF Catherine Coast oes
uae Attorney for Petitioner
(5
APPENDIX A
Court of Appeals of Michigan
DIETRICH & ASSOCIATES,
Plaintiff-Appellant,
Vv
CAROLYN ROGERS, GEOFFREY FIEGEK, AND
FIEGER, FIEGER, KENNEY & JOHNSON, P.C.,
Defendants-Appellees
An unreported decision of the Michigan Court of Appeals,
Docket No. 250702, ~
released Jan. 27, 2005.
Before: HOEKSTRA, P.J., and CAVANAGH = and
BORRELLO, JJ.
[UNPUBLISHED]
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order
dismissing its complaint. We affirm. This case is being |
decided without oral argument pursuant to MCK 7.214(E).
Plaintiff first argues that the trial court failed to recognize
that it’s suit seeking payment of attorney fees properly stated
an “independent action” under the five-part test of Trost v.
Buckstop Lure Co, Inc, 249 Mich App 580, 588-589; 644
NW2d 54 (2002). We disagree. The portion of Trost relied
on by plaintiff is inapposite to the present case because its
five-part test is directed at when a party may obtain equitable
relief in an independent action from a judgment that has been
entered against it. The 7rost test applies to circumstances 1n
_ which a judgment has been entered against a party in the
la
sense of imposing liability on that party in favor of another
party. In particular, one requirement of the five-part test is a
showing that there is a valid defense to the alleged cause of
action on which the judgment is founded. Jd. at 589. In this
case, plaintiff is not attempting to obtain such relief from a
judgment imposing liability on it, but rather is seeking to
affirmatively impose liability on defendants. Thus, the five-
part test of Trost pertaining to equitable relief from a
judgment is inapplicable, and plaintiff is not entitled to relief
on this basis.
Plaintiff next argues that the trial court erred in granting
summary disposition to defendants without conducting an
evidentiary hearing because of its allegations of fraud. We
disagree. The authority cited by plaintiff indicates that it is
generally an abuse of discretion for a trial court to decide a
motion for relief from a judgment or an order based on fraud
without conducting an evidentiary hearing. Kiefer v. Kiefer,
212 Mich App 176, 179; 536 NW2d 873 (1995). But, in
dismissing plaintiff's case, the trial court was not deciding a
motion for relief from a judgment or an order. Rather, it
resolved defendants’ motion to dismiss the case. Thus, the
authority relied on by plaintiff does not indicate that the trial
court was required to hold an evidentiary hearing on the
matter. Further, the motion to dismiss was predicated on
plaintiff's claims being barred by the doctrine of res judicata.
Accordingly, the motion presented a legal issue as to which
an evidentiary hearing was unnecessary. Therefore, plaintiff
is not entitled to relief based on this issue.
Finally, plaintiff argues that the trial court erred by
dismissing this case on the basis of res judicata because the
case involved an “independent action,’ named defendant
Carolyn Rogers as a defendant (unlike the prior Wayne
Circuit Court action), and involved different allegations than
the prior litigation. We disagree. Whether res judicata bars a
subsequent action is reviewed de novo. Adair v. Michigan,
9 «
aa
470 Mich. 105, 119; 680 NW2d 386 (2004). The doctrine of
res judicata bars a subsequent action when (1) a prior action
was decided on the merits, (2) both actions involve “the
same parties or their privies,” and (3) the matter in the
second action was or could have been resolved m the first.
Id. at 121. Michigan law applies res judicata broadly to bar
“not only claims already litigated, but also every claim
arising from the same transaction that the parties, exercising
reasonable diligence, could have raised but did not.” Id.
Clearly, the prior Wayne Circuit Court action in which
defendants Fieger and his law firm obtained a grant of
summary disposition in their favor was decided on the merits
and involved the same matter as the present case. Moreover,
plaintiff's substantive claims in this case were, or with
reasonable diligence, could have been raised in the earlier
case. Accordingly, res judicata bars plaintiff's claims against
Fieger and his law firm.'
The only remaining question is whether defendant Rogers is
also protected from the present suit by the doctrine of res
judicata based on privity with Fieger and his law firm.
Parties are in privity for this purpose if “the first litigant
represents the same legal right that the later litigant is trying
to assert.” Jd. at 122. In naming Rogers as a defendant,
plaintiff must be claiming that it is entitled to recover a
portion of its claimed attorney fee from her. In this regard,
Fieger and his law firm effectively represented Carolyn’s
“legal right” in opposing plaintiff's claim of an entitlement
to such an attorney fee in the earlier action. Accordingly,
Carolyn is in privity with Fieger and his law firm for
purposes of this case and, thus, is also protected against
' Although the Fieger law firm has a different name in this case than in
the prior action, it is apparent that, even if they are two distinct entities;
they are in privity for purposes of this action because plaintiffs claim
against the current Fieger law firm must be based on it being responsible
for the conduct of the earlier !aw firm.
3a
plaintiff's claims by the doctrine of res judicata. The trial
court properly dismissed the case on the basis of res judicata.
Affirmed.
Aa
APPENDIX B
Supreme Court of Michigan
DIETRICH & ASSOCIATES
Plaintiff-Appellant
Vv
CAROLYN ROGERS, GEOFFREY FIEGER, AND
FIEGER, FIEGER, KENNEY & JOHNSON, P.C.
Defendants-Appellees
474 Mich 898; 705 NW2d 113 (2005)
NO. 128179
COA No. 250702.
October 31, 2005
Disposition: On order of the Court, the application for leave
to appeal the January 27, 2005 judgment of the Court of
Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed
by this Court.
Sa
APPENDIX C
Supreme Court of Michigan
DIETRICH & ASSOCIATES,
Plaintiff-Appellant,
Vv
CAROLYN ROGERS, GEOFFREY FIEGER, AND
FIEGER, FIEGER, KENNEY & JOHNSON, P.C.,
Defendants-Appellees.
474 Mich 1065, 711 NW2d 299 (2006)
Docket No. 128179 (38)
COA No. 250702
Feb. 27, 2006
On order of the Court, the motion for reconsideration of this
Court’s order of October 31, 2005 is considered, and it is
DENIED, because it does not appear that the order was
entered erroneously.
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APPENDIX D
FOURTEENTH AMENDMENT
Section | of the Fourteenth Amendment to the United
States Constitution provides in part:
No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
state deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.
Ja
APPENDIX E
STATE OF MICHIGAN
OAKLAND COUNTY CIRCUIT COURT
DIETRICH AND ASSOCIATES
——
Plaintiff,
Vv
CAROLYN ROGERS, GEOFFREY
FIEGER, and FIEGER, FIEGER,
KENNEY & JOHNSON P.C.
Jointly and Severally
Defendants
S.E. Michigan Law Associates, P.L.L.C.
By: Thomas J. Lange Jr. (P59401)
By: David S. DelBoccio (P64042)
Attorneys for Plaintiff
718 Notre Dame
Grosse Pointe, MI 48230
313.884.6760
/
COMPLAINT FOR CONSPIRACY,
TORTIOUS INTERFERENCE WITH
CONTRACT, QUANTUM MERUIT,
UNJUST ENRICHMENT, PROMISSORY
ESTOPPELS, BREACH OF CONTRACT,
CONCERT OF ACTION, CONVERSION,
AND FOR INDEPENDENT RELIEF
8a
JURY DEMAND
A civil action between these parties or other
parties arising out of the transaction or
occurrence alleged in the complaint has been
previously filed in the Circuit Court for the
third judicial circuit (Wayne County), where
it was given docket number 98-837522-CK
and assigned to Judge Michael James
Callahan. The action is no longer pending.
NOW COMES the Plaintiff, Dietrich and Associates and for
its Complaint as to the Defendants herein, states as follows:
I.
Plaintiff is a Michigan corporation now in the process
of winding up its affairs pursuant to MCLA
450.1833, is the successor in interest to Dietrich &
Cassavaugh, P.C. and maintains it offices in the City
of Grosse Pointe, County of Wayne and State of
Michigan.
Defendant Carolyn Rogers is the widow of John
Rogers, a former employee of Dietrich &
Cassavaugh, P.C. and is believed to be a resident of
the City of Grosse Pointe Farms, County of Wayne
and State of Michigan.
Defendant Geoffrey Fieger is a licensed attorney in
the State of Michigan and maintains his practice at
19390 West Ten Mile Road in the City of Southfield,
County of Oakland and State of Michigan.
Defendant Fieger, Fieger, Kenney & Johnson, P.C. is
a Michigan professional corporation maintaining its
principle place of business at 19390 West Ten Mile
Road in the City of Southfield, County of Oakland
and State of Michigan and is the successor in interest
to the firm of Fieger & Fieger.
The acts, transactions and events leading to this
litigation took place in the County of Oakland and the
County of Wayne.
9a
10.
It.
The amount in controversy in this matter is in excess
of $25,000.00, exclusive of interest, costs and
attorneys fees and this matter is properly before this
Court.
FACTUAL ALLEGATIONS
In 1989, John Rogers, the deceased husband of the
Defendant, Carolyn Rogers, was killed when his
automobile was struck by individuals involved in a
police chase while he was driving in the course of his
employment with Dietrich & Cassavaugh, P.C.
Plaintiff was thereafter retained by the Defendant,
Carolyn Rogers, to pursue the legal remedies which
may be available to her, including workers’
compensation, no-fault and uninsured motorist
actions as well as potential civil actions involving the
driver of the other vehicle and the City of Detroit, as
well as opening and maintaining a probate action on
John Rogers. 3
Plaintiff Carolyn Rogers was able to obtain very
substantial recoveries on behalf of Defendant
Carolyn Rogers in both workers’ compensation and
no-fault matters after devoting considerable time,
effort and expense on her behalf.
Plaintiff received no compensation for these services
in both uninsured motorist and workers’
compensation matters, based upon the agreement that
it would be compensated through the proceeds of the
contemplated wrongful death action and because of
the structured nature of the payments in both matters.
In the course of investigating, researching and
preparing the wrongful death action, Plaintiff
determined that the best interests of Defendant
Rogers would be served by the affiliation of
Defendant Fieger as co-counsel with Plaintiff in
handling the wrongful death action.
10a
12.
13.
14.
15.
16.
17.
18.
19.
After a number of discussions with the Defendant
Rogers, she agreed that we would seek the
involvement of the Defendant, Fieger.
Upon consultation with the Fieger Defendants, it was
agreed between Plaintiff and Defendants that the
Defendants would work with the Plaintiff in the
wrongful death action with any resultant fees being
apportioned two-thirds to Defendant Fieger and one-
third to the Plaintiff, as memorialized in_ the
correspondence of the Defendant Fieger attached
hereto as Exhibit A. :
The wrongful death litigation was successfully
prosecuted with an eventual recovery in excess of
Nine Million ($9,000,000.00) dollars being obtained
following the resolution of the appellate process.
The Plaintiff continued to be involved in the
prosecution of this matter and was co-counsel.
Upon the recovery in the wrongful death action,
attorney fees in excess of Three Million
($3,000,000.00) dollars were generated.
In violation of and contrary to the agreement between
the Defendants and the Plaintiff, no fee was ever paid
to the Plaintiff, the Fieger Defendants retaining all
attorney fees.
Earlier litigation as noted in the caption above was
instituted by Plaintiff, against the Fieger Defendants,
said case was dismissed based upon material
misrepresentations on the part of the Fieger
Defendants, constituting a fraud upon the Court, (as
detailed further herein), and giving rise to the right of
the Plaintiff to pursue this independent action in
accordance with the provisions of the Michigan Court
Rules. :
The actions of the Fieger Defendants and the errors
of the Court in dismissing the prior action are of such
magnitude that it would be inequitable and contrary
to the interests of justice to permit it to stand and
lla
20.
a.
ot
ad.
24.
a:
26.
allow the Fieger Defendants to be the beneficiaries of
their improper actions.
Upon information and belief, the Fieger Defendants
sought and obtained the assistance of the Defendant
Rogers in those actions and in deliberately seeking to
deprive the Plaintiff of its rightful share of the fees
generated.
COUNT I - CIVIL CONSPIRACY
Plaintiff incorporates herein ~by reference all
allegations set firth within Paragraphs 1 through 20
of this Complaint.
Pursuant to the agreements between the Plaintiff and
the Defendants, the Plaintiff is entitled to a one-third
share of the attorney fees generated in the wrongful
death action in compensation of its services in the
workers’ compensation and no-fault actions and for
Plaintiff's services rendered with respect to the
wrongful death action, including the referral to and
seeking of the involvement of the Fieger Defendants
therein. :
The agreements of the parties is further memorialized
by the correspondence of the Fieger Defendants
attached hereto as Exhibit A, which was known to
and consented to by the Defendant Rogers.
Upon the resolution of the wrongful death action, the
Fieger Defendants refused and actively sought to
prevent the Plaintiff from obtaining its rightful share
of the fees generated.
In order to do so, the Fieger Defendants attempted to
establish a ruse through which they could claim that
Plaintiff was not entitled to any fee based upon the
provisions of MRPC 1.5(E).
This ruse could be established only through the
participation and involvement of the Defendant
Rogers, who signed a statement in the form of a bar
12a
y a B
28.
29.
30.
grievance, (that is believed to have been prepared by
the Fieger Defendants), falsely claiming that she was
unaware of and did not consent to the sharing of fees.
Attached hereto as Exhibit B is the letter dated April
26, 1999, dismissing the grievance.
The Fieger Defendants also submitted an Affidavit
based upon this false statement which constituted
further misrepresentation to the Court.
The trial Court in the Wayne County Circuit Court
matter relied upon this false statement and false
affidavit in dismissing the action.
The purpose and intent of the Defendants was to
prevent the Plaintiff from obtaining any fees for the
extensive legal services it provided in all of the
actions taken on behalf of the Defendant Rogers.
As a result of this conspiracy, the Plaintiff has been
deprived any payment for its extensive legal work on
Defendant Rogers’ behalf and as agreed to by the
parties hereto.
WHEREFORE, the Plaintiff herein respectfully requests that
this Honorable Court enter a Judgment in its favor in an
amount
deemed to-~ constitute adequate compensation,
together with costs, interest, and attorney fees so unjustly
sustained.
31.
4
33.
COUNT II - TORTIOUS INTERFERENCE
Plaintiff incorpo~*tes by reference all allegations set
forth within Pz agraphs 1 through 30 of this
Complaint.
Plaintiff and the Fieger Defendants, as a result of
negotiations and discussion, entered into a contract
calling for a one-third share of the fees generated in
the wrongful death action to be paid to the Plaintiff.
The contract between the Fieger Defendants and the
Plaintiff is memorialized by virtue of _ the
correspondence attached hereto as Exhibit A.
13a
34. The Plaintiff held numerous discussions with the
Defendant Rogers concerning the inclusion of the
Fieger Defendants as co-counsel, the fees generated
in the worker’s compensation and no-fault actions
and the sharing of fees that may be generated as a
result of the wrongful death action, which was
consented to by the Defendant Rogers.
35. Contrary to the agreement and consent of the
Defendants, the Plaintiff has not been paid for the
services it provided in any of those matters.
36. During the approximately ten years it took to
complete the wrongful death action, Defendant
Rogers personally raised no objection to the sharing
of fees between Plaintiff and the Fieger Defendants.
At the time for distribution of proceeds, the Fieger
Defendants refused to discuss compensation with the
Plaintiff.
37. The Defendant Rogers obtained all proceeds of the
workers’ compensation and no-fault matters as well-
as more than Six Million ($6,000,000.00) dollars
from the wrongful death action.
38. | Defendants’ refusal to compensate the Plaintiff was
based upon the aforementioned statement of the
Defendant Rogers, which was contrary to fact and
which constitutes a tortuous interference in the
contractual agreement between Plaintiff and the
- Fieger Defendants.
39. Although the Plaintiff has reason to believe that the
interference of the Defendant Rogers was due to the
undue influence of the Fieger Defendants, said
interference has resulted in the Plaintiff being
deprived of its rightful compensation.
WHEREFORE, the Plaintiff herein respectfully requests that
this Honorable Court enter a Judgment in its favor in an
amount deemed to constitute adequate compensation,
together with costs, interest, and attorney fees so unjustly
sustained.
l4a
40.
41.
42.
43.
45.
46.
COUNT III - QUANTUM MERUIT
Plaintiff incorporates herein by reference ll
allegations contained within Paragraphs 1 through 39
of this Complaint.
Plaintiff provided valuable services to the Defendant
Rogers with respect to the wrongful death of her
husband which resulted in the recovery of in excess
of Ten Million ($10,000,000.00) dollars.
All of the Defendants benefited from the services
rendered by the Plaintiff in the actions pursued on
behalf of the Defendant Rogers. Total recoveries
were in excess of Ten Million ($10,000,000.00)
dollars.
Plaintiff has not been reimbursed for various
expenses incurred on behalf of the Defendant Rogers
in the prosecution said matters, despite the substantial
recoveries.
Despite the considerable payments to both Fieger and
Rogers, Plaintiff has received absolutely no
compensation whatsoever for any of the recoveries
that it obtained in the workers’ eompensation and no-
fault actions, the recovery that was obtained through
its participation in the wrongful death action,
including negotiating the involvement of the Fieger
Defendants and has not been reimbursed in any way
for the expenses incurred or the hours Plaintiff put in.
Based upon the doctrine of quantum meruit, the
Plaintiff is entitled to compensation in an amount
deemed to represent the reasonable value of the
services rendered and reimbursement of expenses.
Considering the nature of the recoveries obtained on
behalf of the Defendant Rogers, and the agreement
with the Fieger Defendants, the reasonable fee for the
services of the Plaintiff is a one-third share of the
fees generated.
WHEREFORE, the Plaintiff herein respectfully requests that
this Honorable Court enter a Judgment in its favor in an
amount deemed to constitute adequate compensation,
together with costs, interest, and attorney fees so unjustly
sustained.
47.
48.
49.
50.
a1.
COUNT IV —- UNJUST ENRICHMENT
Plaintiff incorporates herein by reference all
allegations contained within Paragraphs | through 46
of this Complaint.
Plaintiff rendered substantial and extensive legal
services upon behalf of the Defendant Rogers and the
estate of John Rogers in the wrongful death, workers’
compensation, uninsured motorist, and probate of the
deceased’s estate.
All of the Defendants benefited from the services
rendered by the Plaintiff, to the extent of over Ten
Million ($10,000,000.00) recovered, while Plaintiff
has received no compensation for its extensive work.
Plaintiff has never been compensated for any services
or expenses that it has provided.
The Defendants have, therefore, been unjustly
enriched by Plaintiff's efforts, yet have failed and
refused to compensate and reimburse the Plaintiff and
Plaintiff is entitled to reasonable fees for its services
in the amount of its one-third share in the fees
generated plus expenses advanced.
WHEREFORE, the Plaintiff herein respectfully requests that
this Honorable Court enter a Judgment in its favor in an
amount deemed to constitute adequate compensation,
together with costs, interest, and attorney fees so unjustly
sustained.
COUNT V —- INDEPENDENT ACTION
l6Oa
7
Fae
54.
aa
56.
57.
Plaintiff incorporates herein by reference ll
allegations contained within Paragraphs 1 through 51
of this Complaint.
In seeking to enforce the terms of the contract and
agreement with the Defendants, the Plaintiff
previously filed litigation as to the Fieger
Defendants.
That litigation was dismissed by the trial Court based
the misrepresentations of the Defendants, contrary to
the provisions of the Michigan Court Rules.
MCR 2.612(C)(3) authorizes and permits the filing of
an independent action to obtain relief from a
judgment or order based upon various grounds,
including but not limited to the presence of
substantial inequity or fraud.
Permitting the Defendants to retain the monies paid
to them without compensating the Plaintiff and the
conduct of the Court as set forth herein constitutes an
egregious and substantial inequity.
Fraud was committed upon the Court in obtaining the
dismissal of the prior action including, but not limited
to the following particulars:
a. Failing to disclose the concert of action and
conspiracy between the Defendants;
b. Arguing before the Court the existence of alleged
facts which were not supported by or evidenced
by sworn testimony or affidavits;
c. Arguing the existence of an alleged conflict of
interest on the part of the Plaintiff which did not
exist;
d. Arguing the existence of an objection on the part
of the Defendant Rogers when no objection had
been presented until the time came for the
distribution of proceeds and when the objection is
believed to have been prepared by the Fieger
Defendants;
l7a
58.
e.
Leading and causing Plaintiff to believe and rely
upon agreement set forth within — the
correspondence of the Fieger Defendants attached
hereto as Exhibit A;
Other instances of improper conduct which will
be determined through the course of discovery
and investigation of this matter.
The proceedings before the Court leading to the grant
of summary disposition of the prior action were
grossly improper and constituted a violation of the
substantial property rights of the Plaintiff in the
following particulars:
a.
Granting summary disposition of said action
when the Fieger Defendants were in default and
not properly before the Court;
Granting summary disposition absent the
presence of record of supported evidence;
Granting summary disposition based upon the
fraudulent statements and misrepresentations of _
the Fieger Defendants;
Granting summary disposition based upon the
improper assignment of the duty to disclose the
compensation agreement to client solely upon
Plaintiff whereas it was required to be shared
between the Fieger Defendants and the Plaintiff
(See Informal Ethics Open R-I-234 dated May
10, 1995);
Granting summary disposition based upon the
improper application of the provisions of the
Michigan Rules of Professional Conduct;
Granting summary disposition without permitting
the Plaintiff to obtain discovery which would
establish the basis for the recovery sought;
Granting summary disposition in spite of the
existence of a contract between the parties;
Granting summary disposition when it was
known to the Court that doing so would serve to
18a
subject the Plaintiff to substantial damage and
inequity;
i. Other items which will be determined during the
course of discovery and investigation in this
matter.
59. Asa result of the foregoing, the Plaintiff has beea
significantly damaged in an amount in excess of One
Million ($1,000,000.00) dollars.
WHEREFORE, the Plaintiff herein respectfully requests that
this Honorable Court enter a Judgment in its favor in an
amount deemed to constitute adequate compensation,
together with costs, interest, and attorney fees so unjustly
sustained. |
COUNT VI-— PROMISSORY ESTOPPEL
60. Plaintiff incorporates herein by reference all
allegations contained within Paragraphs | through 59
of this Complaint.
61. An agreement was reached between Plaintiff and the
Fieger Defendants with respect to the apportionment
of fees that may be generated as a result of the
prosecution of the wrongful] death action on behalf of
the Estate of John Rogers.
62. That agreement called for the Plaintiff to obtain a
one-third share of those fees in excess of Three
Million ($3,000,000.00) dollars.
63. The Fieger Defendants knew and intended that the
Plaintiff would rely upon the agreement with respect
to those fees and documented the agreement in the
correspondence attached hereto as Exhibit A.
64. The Plaintiff did rely upon said agreement as well as
the obligations imposed upon the Fieger Defendants
by virtue of the Michigan Rules of Professional
Conduct, Plaintiff further relies on said agreement as
an expression of professional obligation.
19a
66.
in spite of the agreement reflecting a clear meeting of
the minds, the Fieger Defendants acted unequivocally
to deprive the Plaintiff of its rightful share of the fees
generated.
Pursuant to the doctrine of promissory estoppel, the
Fieger Defendants are obligated to compensate the
Plaintiff in the amount of its one-third share of fees
generated in the wrongful death action.
WHEREFORE, the Plaintiff herein respectfully requests that
this Honorable Court enter a Judgment in its favor in an
amount
deemed to constitute adequate compensation,
together with costs, interest, and attorney fees so unjustly
sustained.
67.
68.
69,
70.
71.
i
COUNT VII - BREACH OF CONTRACT
Plaintiff incorporates herein by reference ll
allegations contained within Paragraphs 1 through 66
of this Complaint.
Defendant Rogers entered into a contract with
Plaintiff to pursue the legal remedies which might be
available to her as previously alleged.
The Fieger Defendants were brought into this
contract by agreement between Plaintiff and
Defendants to be co-counsel for trial of the wrongful
death action.
Under this contract, the Attorneys were to be
compensated out of any proceeds recovered in the
wrongful death suit.
The agreed upon compensation was to be one-third
(1/3) of any net proceeds recovered.
Upon the entry of the Fieger Defendants, it was
agreed by Plaintiff and Defendants that the
compensation would be apportioned with one-third
(1/3) going to Plaintiff and the remainder to the
Fieger Defendants as stated in Paragraph 13.
20a
73.
74.
eo
76.
77.
78.
79.
Plainuff fulfilled all its obligations under the
contract. —
As stated in Paragraph 14, in excess of Nine Million
($9,000,000.00) dollars was recovered in the
wrongful death action.
As stated in Paragraph 16, this resulted in attorney
compensation in excess of Three Million
($3,000,000.00) dollars.
Under the contract, Plaintiff was entitled to one-third
(1/3) of that compensation, or in excess of One
Million ($1,000,000.00) dollars.
Defendants, jointly and severally, have failed and
refused to pay Plaintiff said compensation.
Defendants’ conduct as described in this Complaint
constituted a breach of the contract between the
parties.
Plaintiff has been damaged by Defendants’ breach in
an amount in excess of One Million ($1,000,000.00)
dollars.
PLAINTIFF REQUESTS that this Court enter Judgment in
its favor and against Defendants, jointly and severally, in an
amount in excess of One Million ($1,000,000.00) dollars as
it shall deem appropriated, plus interest at the statutory rate
from the date of filing and that the Court grant it such other
and different relief as the Court deems warranted.
80.
81.
82.
COUNT VIII - CONCERT OF ACTION
Plaintiff incorporates herein by reference all
allegations contained within Paragraphs | through 79
of this Complaint.
At all relevant times, several or all Defendants
engaged in concerted activities as described in
Paragraphs 1 through 79 by express or implied
agreement.
Plaintiff may not be able to specify which Defendant
is responsible for each of the activities of Defendants
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83.
84.
85.
due to the generic similarity of such activities as
produced and promoted by these Defendants.
As a direct and proximate result of Defendants’
concerted activities, Plaintiff has sustained and will
continue to sustain severe injuries and damages as
more specifically alleged above.
Due to the concert of action among all of the various
Defendants, each is liable to Plaintiff for these
injuries and damages, even if there was no direct
relation to the activity conducted by that particular
Defendant.
Defendants are jointly, severally and/or alternatively
liable.
PLAINTIFF REQUESTS that this Court enter Judgment in
its favor and against Defendants, jointly and severally, in an
amount deemed to constitute adequate compensation,
together with costs, interest and attorney fees so unjustly
sustained.
COUNT XI —- CONVERSION
86. Plaintiff incorporates herein by reference ll
allegations contained within Paragraphs | through 85
of this Complaint.
87, As stated above, Plaintiff was entitled to one ninth
(1/9) of the recovery in the wrongful death action as
compensation and upon payment of the recovery to
the Estate was entitled to immediate possession of
said one-ninth of said recovery.
88. Over nine million ($9,000,000) dollars was recovered
in the wrongful death action.
89. Said recovered funds were collected and disbursed by
Defendants Fieger.
on
Plaintiff has repeatedly, both orally and in writing,
demanded payment of his ninth of the recovery.
91.
92.
93.
94.
Defendants Fieger have, both expressly and by their
silence, refused to pay over or to surrender these
funds as described above.
Defendants Fieger misdelivered said compensation to
themselves.
Defendant Rogers, knowing that Defendants Fieger
were so refusing to so pay or surrender these funds,
has by her actions as stated above aided and abetted
Defendants Fieger in these actions. -
These acts described above constitute an unlawful
conversion at common law and under MCL
600.2919a of Plaintiff's property, resulting in
damages to Plaintiff in excess of one million
($1,000,000) dollars.
PLAINTIFF REQUESTS that this court enter judgment
against Defendant in the amount in excess of one million
($1,000,000) it determines appropriate in this case as the
actual damages, and that amount be tripled in the final
judgment as authorized by MCL 600.2919a, plus costs and
reasonable attorney fees as authorized by the same statute.
JURY DEMAND
Plaintiff demands a jury trial.
Respectfully Submitted,
Thomas J. Lange, Jr. (P59401)
Attorney for Plaintiff
718 Notre Dame
Grosse Pointe, MI 48230
APPENDIX F
MICHIGAN COURT RULE 2.612 (MCR 2.612)
Relief From Judgment or Order
(A) Clerical Mistakes.
(1) Clerical mistakes in judgments, orders, or other parts of
the record and errors arising from oversight or omission may
be corrected by the court at any time on its own initiative or
on motion of a party and after notice, if the court orders it.
(2) If a claim of appeal is filed or an appellate court grants
leave to appeal, the trial court may correct errors as provided
in MCR 7.208(A) and (C).
(B) Defendant Not Personally Notified. A defendant over
whom personal jurisdiction was necessary and acquired, but
who did not in fact have knowledge of the pendency of the
action, may enter an appearance within 1 year after final
judgment, and if the defendant shows reason justifying relief
from the judgment and innocent third persons will not be
prejudiced, the court may relieve the defendant from the
judgment, order, or proceedings for which personal
jurisdiction was necessary, on payment of costs or on
conditions the court deems just.
(C) Grounds for Relief from Judgment.
(1) On motion and on just terms, the court may relieve a
party or the legal representative of a party from a final
judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable
neglect.
(b) Newly discovered evidence which by due
diligence could not have been discovered in time to
move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or
discharged; a prior judgment on which it is based has
been reversed or otherwise vacated; or it is no longer
equitable that the judgment should have prospective
application.
(f) Any other reason justifying relief from the
operation of the judgment.
(2) The motion must be made within a reasonable time, and,
for the grounds stated in subrules (C)(1)(a), (b), and (c),
within one year after the judgment, order, or proceeding was
entered or taken. A motion under this subrule does not affect
the finality of a judgment or suspend its operation.
(3) This subrule does not limit the power of a court to
entertain an independent action to relieve a party from a
judgment, order, or proceeding; to grant relief to a defendant
not actually personally notified as provided in subrule (B); or
to set aside a judgment for fraud on the court.
APPENDIX G
Court of Appeals of Michigan
TROST
Vv
BUCKSTOP LURE COMPANY, INC
249 Mich App 580, 644 NW2d 54
Submitted June 6, 2001, at Grand Rapids.
Decided February 5, 2002, at 9:00 A.M.
Docket No(s) 220165.
Disposition: Affirmed.
Counsel:
Golden and Kunz, P.C. (by Robert H. Golden and Armand
D. Kunz), for the plaintiffs.
Glassen, Rhead, McLean, Campbell & Schumacher (by
Kevin V. B. Schumacher), for the defendant.
Judges:
Opinion by Per Curiam. Before: Neff, P.J., and Doctoroff
and Wilder, JJ.
Per Curiam.
In this action seeking relief from a judgment, plaintiffs Fred
—
D. Trost and Fred D. Trost Enterprises, Inc.,' appeal as of
right from a trial court order granting defendant summary
disposition pursuant to MCR 2.116(C)(8). We affirm.
I. FACTS AND PROCEEDINGS
In 1992, defendant Buckstop Lure Company, Inc., filed a
libel action against plaintiffs Fred D. Trost and Fred D. Trost
Enterprises, Inc., in the Montcalm Circuit Court. Following a
several-week trial, the trial court entered a judgment in the
amount of $4 million in favor of Buckstop. As a result of that
judgment, Trost filed an application for delayed leave to
appeal on April 1, 1994. The parties then stipulated to
dismiss the appeal with prejudice. Subsequently, on January
12, 1995, Trost filed another claim of appeal, seeking to
appeal an order denying a motion to set aside a default.
Again, this appeal was, by stipulation of the parties,
dismissed with prejudice.
Then, on February 10, 1999, Trost filed in the circuit court
the instant independent action against Buckstop. This action
sought relief from the judgment in the previous action
pursuant to MCR 2.612(C)(3). Specifically, Trost alleged (1)
that the court in the previous action lacked subject-matter
jurisdiction, (2) that the proofs elicited by Trost’s counsel at
trial had been “infirm and not cognizable by [the] court,” (3)
that the prior judgment had been “based upon an improper
statement and understanding of the law by the Court,” (4)
that the conduct of and preparation for trial by Trost’s
counsel had been “* ther absent, incompetent or negligently
performed and that [Trost] was deprived of the advice and
presence of competent counsel,” and (5) that “manifest
injustice” had taken place as a result of these actions.
' For ease of reference, because Fred D. Trost and Fred D. Trost
Enterprises, Inc., are for all practical purposes the same entity, we will
refer to both plaintiffs simply as “Trost.
27a
Rather than filing an answer to Trost’s complaint, Buckstop
moved for summary disposition pursuant to MCR
2.116(C)(8), arguing that MCR 2.612(C)(3) allowed a court
to grant relief from a judgment in an independent action only
if a party performed fraud on the court. In response, Trost
argued that MCR 2.612(C)(3) provided three bases for an
independent action seeking relief from judgment: (1) to
relieve a party from a judgment, order, or proceeding, (2) to
grant relief to a defendant not actually served, and*(3) to set
aside a judgment for fraud on the court. Trost further
maintained that if the court did not have subject-matter
jurisdiction over the underlying libel claim, MCR
2.612(C)(3) permits him to seek relief from the judgment.
The trial court granted defendant’s motion, finding that MCR
2.612(C)(3) provides relief from a judgment only when a
defendant had not been personally notified or when fraud
was perpetrated on the court, and that neither of those two
bases had been pleaded by Trost. The trial court also found
that even if MCR 2.612(C)(3) allowed independent actions
solely “to relieve a party from a judgment, order, or
proceeding,” there was no showing of facts that would form
the basis for such an action.
Il. STANDARD OF REVIEW
This Court reviews de novo the grant of summary
disposition, Crown Technology Park v D&N Bank, FSB, 242
Mich App 538, 546; 619 NW2d 66 (2000), and will not
affirm summary disposition under MCR 2.116(C)(8) unless
the claim is so clearly unenforceable as a matter of law that
no factual development could possibly justify a judgment in
favor of the nonmoving party. Smith v Stolberg, 231 Mich
App 256, 258; 586 NW2d 103 (1998). For a motion to be
granted under MCR 2.116(C)(8), the pleadings must make it
clear that the plaintiff has failed to state a claim on which
relief can be granted and that no amount of factual
development would justify the plaintiff's claim for relief.
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Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572
NW2d 201 (1998).
Ill. ANALYSIS
The first question that we musi decide is whether MCR
2.612(C)(3) allows a party to seek relief from a judgment in
an independent action on grounds other than extrinsic fraud
or nonservice. We conclude that it does.
MCR 2.612(C)(3) provides: — -
This subrule does not limit the power of a
court to. entertain an independent action to
relieve a party from a judgment, order, or
proceeding; to grant relief to a defendant not
actually personally notified as provided in
subrule (B); or to set aside a judgment for
fraud on the court.
The express language of MCR 2.612(C)(3) provides that the
provisions in MCR 2.612(C)(1) and (2) in no way “limit{s]
the power of a court to entertain an independent action to
relieve a party from a judgment, order, or proceeding ... .”
Hence, a party need not allege fraud or nonservice in order to
seek relief from a judgment in an independent action
pursuant to MCR 2.612(C)(3). In this regard, we find the
following commentary to be particularly persuasive:
MCR 2.612(C)(3) expressly notes that its
prevision for relief from judgment by a
motion directly in the same proceedings “does
not limit the power of a court to entertain an
independent action to relieve a party from a
judgment.” In Michigan, an independent
action in chancery for relief from a judgment
has been long recognized. Such independent
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equitable actions granted relief either by
setting aside the judgment, if rendered by the
same court, or by enjoining its enforcement or
execution or declaring it void, if rendered by
another court. This equitable relief was most
frequently granted as to judgments at law but
was also available to restrain enforcement of
an equity decree itself.
Relief from a judgment by an independent
equitable action has been recognized in
Michigan as proper on numerous groun’s,
including the following: judgment void for
lack of jurisdiction; newly-discovered
evidence; after-discovered defense; and
extr:nsic fraud in the procurement of a
judgment. If the judgment is not void for lack
of jurisdiction, the party seeking relief from a
judgment by an independent equitable action
must show that it has a meritorious defense or
cause of action before equitable relief wil! be
given. [Michigan Court Rules Practice, Rule
2.612, § 2612.17, p 483 (citations omitted;
emphasis added). |
In the instant case, Trost based his complaint on five factual
grounds, including lack of subject-matter jurisdiction.
Because the two prior appeals were dismissed with
prejudice, there was no remedy at law available to Trost;
therefore, the complaint, on its face, fulfilled the
requirements of MCR 2.612(C)(3) and case law on
independent actions. Accordingly, the trial court erred in
determining that MCR 2.612(C)(3) only allowed for
independent actions based on nonservice or extrinsic fraud.
Nonetheless, the court also found that even if MCR
2.612(C)(3) provided Trost with an independent action for
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relief from the judgment, he had not pleaded sufficient facts
to state a cause of action, and therefore, Buckstop was
entitled to summary disposition. We agree.
In his complaint, Trost first alleged that because the court did
not have subject-matter jurisdiction of Buckstop’s initial
libel claim, he was entitled to relief from the judgment. We
disagree. As stated in Grubb Creek Action Committee v
Shiawassee Co Drain Comm’r, 218 Mich App 665, 668-669;
554 NW2d 612 (1996):
Jurisdiction is the power of a court to act and
the authority of a court to hear and determine
a case. A court’s subject-matter jurisdiction is
determined only by reference to the
allegations listed in the complaint. If it is
apparent from the allegations that the matter
alleged is within the class of cases with regard
to which the court has the power to act, then
subject-matter jurisdiction exists. Any
subsequent error in the proceedings amounts
to error in the exercise of jurisdiction. When a
court lacks subject-matter jurisdiction, the
court’s acts and proceedings are of no force
and validity.
An order entered without subject-matter
jurisdiction may be challenged collaterally
and directly. Error in the exercise of
jurisdiction may be challenged only on direct
appeal. The erroneous exercise of jurisdiction
does not void a court’s jurisdiction as does the
lack of subject-matter jurisdiction. However,
error in the exercise of jurisdiction can result
in the setting aside of the judgment. [Internal
citations omitted. ]
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See also In re Hatcher, 443 Mich 426, 439; 505 NW2d 834
(1993), Luscombe v Shedd’s Food Products Corp, 212 Mich
App 537, 541; 539 NW2d 210 (1995), and In re Waite, 188
Mich App 189, 196-197, 200; 468 NW2d 912 (1991).
The prior action against Trost alleged libel and was brought
in the circuit court. In Michigan, the circuit courts are courts
of general jurisdiction and are vested with “original
jurisdiction to hear and determine all civil claims” unless the
constitution or statutes provide otherwise. MCL 600.605; see
also MCL 600.601 and Const 1963, art 6, §§ 1, 13. The
Legislature has provided for civil actions alleging libel MCE
600.2911. In providing for these civil actions, the Legislature
did not indicate that libel claims were to be brought in a
court other than the circuit court. Jd. Thus, it is apparent that
Buckstop properly brought its libel action against Trost in
the circuit court and that the circuit court had subject-matter
jurisdiction over that claim. Grubb, supra; MCL 600.601,
600.2911; Const 1963, art 6, §§ 1, 13.
Trost argues that although Buckstop filed a complaint
sounding in libel, because the complaint failed to allege
when the libel took place, where and when it was published,
and what words were false and stated with malice,’ the
circuit court lacked subject-matter jurisdiction. However,
because subject-matter jurisdiction does not depend or
? In the event that these allegations are true, we note that Trost's recourse
was to move for summary disposition pursuant to MCR 2.116(C)(8). See
Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich
238, 272; 487 NW2d 205 (1992) (Riley, J., concurring). However, the
record does not indicate that Trost ever filed such a motion. Instead, the
matter proceeded to a judgment. Because the matter proceeded to a
judgment, Trost's remedy was an appeal as of right challenging the
judgment, not an independent action. See Waite, supra at 200.
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whether the claim is true or false, but instead on the
allegations pleaded (and not the facts), Luscombe, supra;
Waite, supra at 199, quoting Fox v Martin, 287 Mich 147,
152; 283 NW 9 (1938), whether Buckstop’s libel claim was
sufficiently pleaded is of little import in determining whether
the circuit court had subject-matter jurisdiction. Rather the
focus is on whether the circuit court had a legal right to hear
a particular case. Buczkowski v Buczkowski, 351 Mich 216,
221-222; 88 NW2d 416 (1958); Waite, supra at 201, n 1.
Buczkowski, supra at 222, illustrates the shortcomings of
Trost’s argument:
The loose practice has grown up, even in
some opinions, of saying that a court had no
“jurisdiction” to take certain legal action
when what is actually meant is that the court
had no legal “right” to take the action, that it
was in error. If the loose meaning were
correct it would reduce the doctrine of res
judicata to a shambles and provoke endless
litigation, since any decree or judgment of an
erring tribunal would be a mere nullity.
Thus, while Trost may be correct in asserting that
Buckstop’s complaint in the prior action failed to plead libel
with the required degree of specificity, such a failure would
not have deprived the court of its jurisdiction over the
subject matter. Grubb, supra; Luscombe, supra; Waite,
supra. Trost’s subject-matter jurisdiction allegation failed to
state a claim on which relief could be granted, and therefore,
Buckstop was entitled to summary disposition of this issue.
Because the judgment against Trost is not void for lack of
jurisdiction, he is not entitled to equitable relief unless he can
show that he had a meritorious defense in the underlying
case. Michigan Court Rules Practice, supra, pp 482-484;
Finn v Adams, 138 Mich 258, 261; 101 NW 533 (1904). We
33a
have not found any Michigan case that describes with
precision what must be provided in order to establish a
meritorious defense. However, we note that federal courts
have held that five essential elements must be satisfied for a
party to be entitled to independent equitable relief: (1) the
judgment is one that ought not, in equity and good
conscience, be enforced, (2) there is a valid defense to the
alleged cause of action on which the judgment is founded,
(3) fraud, accident, or mistake prevented the defendant from
obtaining the benefit of the defense, (4) there was no
negligence or fault on the part of the defendant, and (5) there
is no adequate remedy available at law. See Michigan Court
Rules Practice, supra, pp 483-484, citing In re West Texas
Marketing Corp, 12 F3d 497, 503, n 3 (CA 5, 1994), and
Bankers Mortgage Co v United States, 423 F2d 73, 79 (CA
5, 1970). See also Cresswell v Sullivan & Cromwell, 922 F2d
60, 71 (CA 2, 1990), and Carteret Savings & Loan Ass’n v
Jackson, 812 F2d 36, 39, n 6 (CA 1, 1987). Because we
conclude that this federal test adequately reflects what
Michigan requires in order to be entitled to relief from a
judgment in an independent equitable action, we adopt it as
our own.
Applying these five elements to the facts here, Trost fails to
establish entitlement to relief from the judgment. Nothing in
the lower court record establishes that Trost had a valid
defense to the underlying cause of action. Because Trost has
failed to establish a valid defense, it is evident that fraud,
accident, or mistake did not prevent Trost from obtaining the
benefit of a defense and that he is not entitled to a legal
remedy. Further, there is no evidence disproving his own
negligence or fault or suggesting that the prior judgment
should not, in equity or good conscience, be enforced.
Accordingly, Trost failed to establish any of the five
elements and, as such, the trial court correctly granted
34a
Buckstop’s motion for summary disposition.’
Affirmed.
* On appeal defendant also requested that this Court sanction Trost and
award it actual costs and attorney fees. However, a review of the lower
court record reveals that defendant never properly moved for sanctions.
Thus, because defendant did not properly move for sanctions below, see
MCR 2.114(E) and (F); MCR 2.625(A)(2), and the trial court declined to
award them sua sponte, MCR _ 2.114(E), we decline to address this
unpreserved issue on appeal. Richmond Twp v Erbes, 195 Mich App 210,
225; 489 NW2d 504 (1992), citing Lowman v Karp, 190 Mich App 448,
454; 476 NW2d 428 (1991). The Supreme Court effectively overruled
Richmond on other grounds in Bechtold v Morris, 443 Mich 105, 108-
109; 503 NW2d 654 (1993).
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.