[00:00:01] Speaker 02:
Case number 14-7104, Bowden Granier, LLP versus Carol L. Knight at L Appellant.

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Mr. Hearn for the appellant, Mr. Og for the appellee.

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Good morning.

[00:00:13] Speaker 03:
Morning.

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May it please the Court that Joseph Aher and a parent on behalf of all the appellants in this case.

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And we know the Court has read our brief, and today I'd like to highlight only a couple of sections of our brief, and of course, answer any questions the Court may have.

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But first, I want to bring to this Court's attention the Michigan Supreme Court case that was decided in June of this year, June 3rd of 2015.

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That's the Frazier, Tribblecock, Davis, and Dunlap v. Boyce Trust case.

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And we submitted a letter to this court pursuant to FR-AT-28J last week.

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We believe the Frazier case is dispositive of the largest issue in this case, at least the largest money issue, and that is whether a law firm can recover additional attorney's fees for representing itself when it sues a former client.

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And several steps we would have to take before we would get to Frazier, though, isn't that correct?

[00:01:05] Speaker 03:
Yeah, you have to take one step.

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You get there one of two ways.

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One is you can apply Michigan law, and I'm sure we'll talk about that in a second.

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Or two, you're not bound like Ann Street Robinson was by the Baker versus Hotstetler case.

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She was bound because that was a Second Circuit case from 2006.

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There was a dissent in that case, as the court may be aware, from Judge Henderson, who basically held that the reasoning in Baker and Hotstetler was not sound in her mind, and she dissented from the case.

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So you either get a true Michigan law or a true D.C.

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law.

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In any event, the Michigan case, the Frazier case, says an attorney, whether it's a law firm or an individual, cannot recover additional attorney's fees charged for representing itself in any litigation matter.

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And I think the two cases are virtually identical.

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Both plaintiffs are law firms.

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Both law firms sued their former clients.

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And both law firms, I think this is a critical element, chose to represent themselves.

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We're not arguing today about the attorney fee provision in the retention letter.

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If there are outside fees to an outside counsel, like Mr. Aug in this case, those would be appropriate.

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We are arguing, though, that internally generated fees are not appropriate fees, either whether it's under a fee-shipping statute or under a contract.

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And the Michigan law was pretty clear.

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To have attorney's fees, you have to have an attorney-client relationship.

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And to have that, you basically need an attorney and a client, basically in an agency relationship.

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And when you represent yourself, that agency relationship just cannot exist.

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So there is a conflict between Michigan and D.C.

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law in this?

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There is a current conflict between Michigan and D.C.

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law, yes.

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So you'd have to prevail under our choice of law rules and showing the Michigan law applies in order for us to take on this decision?

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Correct.

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Would you like to talk about that?

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I can talk about that right now.

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Sure, why not?

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Essentially, we believe that Michigan law should apply because the two contracts, there's only two contracts or two documents in this case, the retention letter and the promissory note,

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The promissory note has a specific choice of law provision, and the retention letter specifically addresses or references the promissory note.

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And we think if you read these two documents together, Michigan law should apply.

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But the choice of law provision didn't have to do with this issue in the letter.

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I'm sorry?

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The choice of law provision, you'd have to persuade us that the choice of law issue, the choice of law provision in the letter actually governs the dispute before us now.

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Right, well, the choice of law provisions in the promissory note is actually stated in the promissory note.

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And the retention letter references the promissory note.

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And I think what's critical here is both documents were created pursuant to the same transaction.

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It was drafted by the Bodie law firm in 2007, August 7th of 2007.

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It was sent to my client.

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There's two two-page documents.

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It's all about attorney's fees.

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The promissory notes about past attorney fees and the retention letters about future attorney fees.

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One thing I think is critical, the attorneys fees are all from the Ohio litigation in Lucas County.

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That's where Toledo is.

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And it all emanated from one single gasoline spill.

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So it's all about the same deal.

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It's all about the same transaction.

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And we think if you look at those two documents, you'll see that a Michigan choice of law provision should apply.

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Can I ask you this?

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If, suppose just for arguments purposes, that we disagree with you on

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your argument that the choice of law provision in the promissory note governs?

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Correct.

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Then do you still have an argument in your view that choice of law principles as applied by our court would still favor Michigan law over D.C.

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law or are you resting on the choice of law provision?

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There's a choice of law provision and also alternatively, again, this panel is not bound by the circuit in the Baker and Hostetler case.

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It's certainly absolutely very persuasive, but this panel could reach a different conclusion and follow the reasoning of Justice Henderson and also the Michigan Supreme Court that says all the circuits that have adopted the footnote seven in the K versus LR case that basically distinguish pro se litigants, Joe Ahern as opposed to Joe Ahern PC,

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isn't the proper reasoning.

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It was Dicta in K versus Eller, and this court, this circuit, chose to follow it, and some other circuits have, but this panel right here is not bound by that.

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All right.

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The other issue I'd like to talk briefly about is the rest judicata, a claim preclusion.

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We're appealing Judge Roberts' September 20, 2011, opinion order.

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And in a nutshell, what Judge Roberts said is the confession of judgment that was entered in Michigan

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On May 2, 2008, did not have res judicata effect.

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Basically, Judge Roberts distinguished confessions of judgment from other types of judgment.

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As the court may be aware from our brief and also discussion by Judge Roberts, this issue has not been reached in Michigan.

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Michigan law is the proper law to decide this issue for the full faith and credit provision in the Constitution.

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And essentially, all judgments in Michigan, we cited consent judgments, summary judgments, in Michigan we call those summary dispositions, same thing, and pro-confesso judgments are all given a res judicata effect.

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There's really no difference for a confession of judgment.

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The judgment itself acts the same.

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So the mere filing is the judgment?

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You have to file a confession of judgment, and then they issue a judgment that day.

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So it is a streamlined procedure.

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But you end up, on May 2nd they filed the confession of judgment, and on May 2nd it was entered, which is obviously much faster than most normal situations.

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But I think what's critical in this case is on May 2nd, the second claim was already right.

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Bodie and Grenier had not represented my clients since December of 2007.

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That's four and a half months.

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So for four and a half months, there had been no legal services rendered.

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And we thought, but we think that they should have joined or were required to join both the $75,000 new fees, let's call them, to the collection of the $300,000 old fees.

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And again, we don't think there's any distinction.

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We couldn't find any cases that held contrary, that confessions of judgment should be separated and treated differently than other types of judgments for the rest of the Cato effect.

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Finally, just briefly, oh, I'm sorry.

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Go ahead.

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Just our other issue on appeal is the litigation committee.

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As the court is aware, the lower court precluded any discussion of the litigation committee, which is referenced in the retention letter, essentially in two opinions, the November 5, 2012 written opinion, and the November 13, 2012 oral opinion on the bench, where the court granted the motion to eliminate, to strike any reference to the litigation committee.

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The court basically looked at Rule 15A2 and basically said, lead is freely granted to amend pleadings.

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However, if there's undue prejudice or undue delay or prejudice, this will not be granted, will not be freely given.

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And the court found significant that they thought that Bodie and Greer was not given notice of the litigation committee as a defense.

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Our brief indicated that this discussion was taking place in a deposition three years prior.

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It's a critical element of the case.

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It was always a keystone defense of our case.

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And I think what's evident by that is when we finally got the motion and when we decided against us,

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when we finally could not talk about the litigation committee anymore.

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We basically have thrown it out.

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This is not a case where there's four or five defenses.

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This is one that was just snuck in or kind of riding on the side.

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We only had two defenses, substantive defenses, throughout this case.

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One was the litigation committee and one was the reasonable attorney fees.

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And by the time trial came on November 13th, the only defense we had was the litigation committee.

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What if the litigation committee was a significant defense to you

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It seems strange that it wouldn't have been mentioned earlier.

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Well, it wasn't mentioned in the pleadings.

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The words of the litigation committee were not mentioned in the pleadings.

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We did say the complaint failed to state a cause of action.

[00:09:57] Speaker 01:
Well, I was focusing more on the fact that you several times agreed that the services were provided pursuant to the contract, which suggests that you were not challenging that.

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Yes, you're talking about paragraph 33 of the amended complaint where it says, services were provided pursuant to the agreement.

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That's what the amended complaint says.

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Paragraph 12 of the complaint defines agreement as all the discussions between the parties over a 13-year period.

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How could we not answer that?

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Yeah, of course services were provided over the 13-year period.

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We paid them a lot of money.

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They were our lawyers for a long period of time.

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We were presumably satisfied for a long period of time.

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But that doesn't mean we conceded and said, hey, for this $75,000, we owe you the money.

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And that's one thing I think the court relied on below, that she was under, I think, a misapprehension that the agreement was the retention letter.

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And again, we didn't define those terms.

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Appellee defined those terms in his amendment complaint.

[00:11:05] Speaker 02:
OK, I just want to be clear about a couple of things here.

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I'm just looking at your brief.

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And the K versus Eller case, it's referenced in your citations, but it isn't referenced in your argument.

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And you have a footnote to Baker versus Hostetler, but that footnote is to a DC Circuit opinion, by which this panel clearly is bound.

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Your Honor, I thought in our brief we did have K versus LR listed in there.

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It's listed, and it says page 35, and if you go to page 35, you'll see that that's an error.

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And so I was trying to find it in your brief.

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I apologize for that, Your Honor.

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And I see it now on page 31.

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And you're talking about an attorney representing himself cannot recover attorney's fees.

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But then you acknowledge on the next page in footnote one that this circuit has drawn a distinction that's different than in Michigan.

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And that's not a second circuit case.

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That's a case from this circuit.

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I guess I'm not following you.

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Is that on page 33 of the footnote?

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32.

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Footnote 1.

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I'm sorry, I'm at the wrong... Well, Your Honor, if that is the case... Oh, is it the footnote of 32?

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Yeah, we're drawing a distinction from the Baker and Hostetler case and saying that, yes, that is a DC Circuit opinion.

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That is a circuit court that made that.

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That was absolutely binding on magistrate Robinson.

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And it's binding on this three-judge panel?

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Yes, Your Honor, it is.

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But again, we thought the court could consider the dissent in that or take new reasoning on that and re-look at the issue.

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If not, then we are bound by the Michigan law issue.

[00:13:30] Speaker 02:
All right.

[00:13:31] Speaker 02:
Thank you.

[00:13:37] Speaker 03:
Your Honor, I have three minutes left for rebuttal.

[00:13:39] Speaker 02:
Of course.

[00:13:45] Speaker 00:
Good morning, Your Honors.

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Brandon Logg on behalf of Bodie and Grenier.

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It does appear now that the Knight defendants are asking this court to overrule

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the Baker and Hostedler case.

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And we respectfully submit that this court cannot and should not do that.

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They didn't argue that.

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below.

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They've really not argued, I don't think they've really argued that in their briefs, and they've not provided you with any policy reasons why that decision should be overruled.

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And I would note that with respect to that issue,

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the Baker and Hostedler holding is the uniform holding of the circuits that have addressed that issue.

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No circuit has held contrary to Baker and Hostedler.

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At the time of Baker and Hostedler, the decisions from the Fifth Circuit and the Fourth Circuit, and since that time, the

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The Eighth Circuit has recently joined and followed Baker and Hostiller, citing the policy – the sound policy grounds with respect to that.

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That's a more recent decision.

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It's not cited in the brief.

[00:15:08] Speaker 00:
But in any event... I guess Michigan disagrees.

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Michigan disagrees, Your Honor.

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Michigan Supreme Court disagrees on the narrow statutory issue.

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In the Michigan case that was cited, they were interpreting a sanction statute.

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under Michigan law, and it was an interpretation of the language of the statute.

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It was not addressing the broader question, which we have here in this instance, whether or not, say in a contract case, there can be attorney's fees under the language of the contract.

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Oh, so you think that if the choice of law provision

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requiring application of Michigan law governed in this dispute, and I take the point that you don't agree with that.

[00:15:53] Speaker 00:
I can address that issue.

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If you did, then you would say even if Michigan law applies, what the Michigan Supreme Court said doesn't even matter.

[00:15:58] Speaker 00:
It doesn't matter.

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It doesn't matter because it's clear from that opinion that they were addressing the statutory language of the Ohio sanctions rule, and they were saying that under the wording of that statute,

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there has to be actual fees incurred, and they were giving it a very narrow interpretation.

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So even under that case, that would not be binding on this court.

[00:16:21] Speaker 04:
But you don't think they were applying Michigan law?

[00:16:24] Speaker 00:
They were applying Michigan, the Michigan statute with respect to that issue.

[00:16:27] Speaker 04:
Well, I think it's something about Ohio.

[00:16:29] Speaker 00:
I'm sorry, I'm sorry, they were applying Michigan law, I apologize.

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They were applying

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Michigan law with respect to the interpretation of that particular statutory language.

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And when you read the case, it is clear that that's what they were doing.

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They were saying, based upon the language of this particular sanction statute, can we award fees to the prevailing party?

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And the answer is based on the language of the statute, no.

[00:17:00] Speaker 01:
So your position would be if the attorney's fees issue were controlled by contract, we wouldn't necessarily know what the Michigan law would provide?

[00:17:12] Speaker 00:
Below, we'd argued that even under Michigan law, that it would be compensable in the private context.

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And we did that below for two reasons, based upon some Michigan cases, but also under the Michigan choice of law.

[00:17:35] Speaker 00:
Michigan choice of law under the circumstances if you applied their choice of law issues They would have referred that back and applied DC law under the under the factual circumstances where the case was being mitigated here it involved cases of DC attorneys and you know, which jurisdiction under the circumstances would have had the Superior or more compelling governmental interests in regulating the fees of the attorneys before it and

[00:18:04] Speaker 04:
But that's a different question, because I thought Judge Brown was asking you, was suppose Michigan law applies.

[00:18:10] Speaker 04:
Because I take your point now to be that if you apply Michigan choice of law provisions, then Michigan choice of law provisions would point us to DC law, and then DC law would apply.

[00:18:17] Speaker 04:
Correct.

[00:18:17] Speaker 04:
But I think the premise of the question was suppose DC law doesn't apply, and suppose Michigan law applies.

[00:18:21] Speaker 04:
Would you say that this Michigan Supreme Court decision doesn't govern on the theory that this is an issue of contract?

[00:18:27] Speaker 00:
Correct.

[00:18:28] Speaker 00:
I was trying to make both points.

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That even if you applied Michigan law directly,

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because it's a matter of contract law and the language of the contract.

[00:18:40] Speaker 00:
That's a very important issue because if you go back and you look at Judge Robinson's careful and thoughtful decision on the choice of law provisions, she carefully went through that and she looked specifically at the contract provision and the record in terms of what the actual language was in the contract.

[00:18:59] Speaker 00:
and the affidavit submitted in support of our position that it meant that private law firms would get their own fees.

[00:19:09] Speaker 00:
And at her opinion, and it starts at page 847 and goes to 848 in the appendix, she goes through the choice of law issues.

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And in her memorandum of opinion,

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She talks about the distinction between statutory issues and the contract issues.

[00:19:37] Speaker 00:
And she concludes that where a court is faced with the question of contract interpretation, not statutory interpretation, the central question is not what Congress intended, but what the parties intended, citing a DC case, Wilcox versus Sisson,

[00:19:54] Speaker 00:
And then she goes on, after she'd analyzed the record on this issue, this is a factual finding.

[00:20:01] Speaker 00:
This is the trial court in which there's no evidence of any abuse of discretion or clearly erroneous findings with respect to the party's intent.

[00:20:09] Speaker 00:
She concludes, defendants

[00:20:13] Speaker 00:
point to no language in the party's contract, which suggests the party's intended to preclude fees incurred by Bode and Grenadier while representing in itself, nor has the court located any language.

[00:20:26] Speaker 00:
So what we have here on this critical issue of the party's intent is the trial court specifically addressing the issue in the context of the record, the factual record below, and then making a factual finding which is not clearly erroneous in any sense.

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And nor has there been any argument to this court that that finding is clearly erroneous.

[00:20:58] Speaker 00:
With respect to the issue that the litigation committee has, quote, always been a keystone defense, end quote, as Judge Brown has pointed out, the answers to this court, to the complaint has always been a, until the very end, been admitted that the

[00:21:28] Speaker 00:
that the services at issue here, the $75,000 in services, not the earlier services, because that's not what was being litigated.

[00:21:35] Speaker 00:
The services at issue were performed, quote, pursuant to agreement, end quote.

[00:21:41] Speaker 00:
The complaint makes absolutely clear that the agreement at issue here was the one that was being sued on.

[00:21:47] Speaker 00:
It's referenced in the complaint.

[00:21:51] Speaker 00:
So at no point in time could there have been any reasonable confusion with respect to that issue.

[00:21:59] Speaker 00:
That was their original admission.

[00:22:01] Speaker 00:
There's a reference to the deposition.

[00:22:04] Speaker 00:
Apparently, in the deposition, Mr. Bode was asked questions about the litigation committee.

[00:22:10] Speaker 00:
He affirmed in the deposition that the services were performed pursuant to the litigation committee approval.

[00:22:20] Speaker 00:
And that deposition was taken in 2009.

[00:22:21] Speaker 00:
2012, there's an amended complaint and an amended answer.

[00:22:27] Speaker 00:
And in that amended answer,

[00:22:29] Speaker 00:
three years after the deposition, once again, they expressly acknowledge that these services, that issue were performed pursuant to the litigation committee.

[00:22:41] Speaker 00:
Now, this is an issue with respect to whether or not that admission should be withdrawn, because they would have to, on the eve of trial, they were actually coming in and saying, Your Honor,

[00:22:53] Speaker 00:
we want to take back that admission.

[00:22:57] Speaker 00:
And so this was an issue with respect to the trial judge's discretion to make an assessment as to whether or not they should be allowed to withdraw that clear admission and assert a new affirmative defense just weeks before trial, long after discovery was closed.

[00:23:18] Speaker 00:
The case law makes clear

[00:23:20] Speaker 00:
that that is a matter within the sound discretion of the trial judge.

[00:23:24] Speaker 00:
The trial judge, in a very carefully thought out opinion, went through the issues and made the factual findings, and that was not an abuse of discretion.

[00:23:35] Speaker 00:
With respect to the other issues, we'll rest on our grief yarn.

[00:23:39] Speaker 02:
All right.

[00:23:39] Speaker 02:
Thank you.

[00:23:42] Speaker 00:
Yes.

[00:23:43] Speaker 02:
Yes.

[00:23:45] Speaker 03:
First of all, on the issue of whether the Frazier case is just limited to what we call mediation sanctions in Michigan.

[00:23:52] Speaker 03:
If the case mediates and goes forward, there are some attorney's fee sanctions in there, also called case evaluation sanctions.

[00:23:59] Speaker 03:
There is a discussion in citing the Omdahl case, the Frazier case cites that.

[00:24:04] Speaker 03:
We also cite that in our brief in Michigan about what is an attorney and the requirement for an agency relationship.

[00:24:12] Speaker 03:
So there is a discussion in that case about

[00:24:14] Speaker 03:
You know, how can you get an attorney fee?

[00:24:17] Speaker 03:
You do need this attorney-client relationship, and we may be a little different than a lot of the other circuits in other states.

[00:24:25] Speaker 03:
Secondly, Your Honor, on the question of this acknowledgement or agreement that in our answer we agreed to,

[00:24:40] Speaker 03:
but we agreed that the services were provided.

[00:24:43] Speaker 03:
I just wanna read the complaint.

[00:24:47] Speaker 03:
Number 12, they talk about during Bodie and Grenier's 13-year representation of the defendants, Bodie and Grenier, and defendants had an explicit verbal agreement regarding Bodie and Grenier's legal representation of the defendants of the agreement.

[00:25:03] Speaker 03:
So when in 33 they say we provided services under the agreement,

[00:25:07] Speaker 03:
We certainly can acknowledge that because, again, we paid them a lot of money over a long period of time.

[00:25:11] Speaker 03:
Again, that doesn't mean that, oh yeah, by the way, everything you've billed us is due in owing.

[00:25:18] Speaker 03:
Thank you.

[00:25:18] Speaker 02:
Thank you.

[00:25:19] Speaker 02:
We'll take the case under advisement.