This summary also appears under Attorneys
Issues: Attorney fees; "Account stated" claim; "Mutual assent"; Fisher Sand & Gravel Co. v. Neal A. Sweebe, Inc.; White v. Campbell; Corey v. Jaroch; Breach of contract claim; Miller-Davis Co. v. Ahrens Constr., Inc. (On Remand); Kloian v. Domino's Pizza LLC; Claim that the fee arrangement described in the Engagement Agreement did not apply because plaintiff was not a party to the arrangement; Abandonment of issue; Blackburne & Brown Mtg. Co. v. Ziomek;Whether the parties orally modified their arrangement; Waiver of claim; MCR 2.111(F)(3); Attorney Gen. ex rel Dep't of Envtl. Quality v. Bulk Petroleum Corp.; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; The parol evidence rule; UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; "Conversion"; Foremost Ins. Co. v. Allstate Ins Co.; Citizens Ins. Co. of Am. v. Delcamp Truck Ctr., Inc.; Claim that plaintiff's attorney charging lien on the funds defendant received from the proceeds of the sale and his refusal to surrender the funds constituted actionable conversion; Miller v. Detroit Auto Inter-Ins. Exch.; George v. Sandor M. Gelman, PC
Court: Michigan Court of Appeals (Unpublished)
Case Name: Dunn v. Bennett
e-Journal Number: 55897
Judge(s): Per Curiam – Fort Hood, Saad, and Borrello
The court held, among other things, that where no genuine issue of material fact existed as to the plaintiff-attorney's account stated claim, the trial court did not err in granting him summary disposition. Defendant engaged the services of plaintiff to represent him in actions that were brought against defendant by the IRS. Plaintiff represented defendant for over two years in a federal suit to remove a Notice of Federal Tax Lien, ultimately reaching a settlement under which the property was sold. In keeping with the settlement agreement, the IRS collected $25,110.77 from the proceeds of the sale and defendant received $40,110.77. During the course of the litigation, he paid approximately $20,000 for plaintiff's legal services, but refused payment of the remaining balance, an amount totaling $116,361.21. Plaintiff submitted documentary evidence establishing that he represented defendant for over 2 years, during which time he sent defendant 33 statements detailing current monthly charges and a cumulative balance. The last statement, dated 9/24/11, showed an amount due of $116,361.21. Plaintiff averred in an affidavit that defendant "never once objected to my statements" and in fact made payments on his account during the course of his representation. He accompanied his affidavit of account "with copies of the billing statements he sent to defendant, showing new charges, cumulative balances, and payments received from defendant." Defendant argued that a genuine issue of material fact existed as to the question of mutual assent to the debt. The court held that he did not contradict the essential facts underlying plaintiff's account stated claim. "Rather than submit documentary evidence contradicting the material elements of plaintiff's claim," the main thrust of his argument appeared to be that no objection was necessary under the circumstances presented as he described them in his affidavit. The court concluded that defendant was correct that "when silence forms the basis for inferring assent to a sum owed, the circumstances involved must support an inference of assent." However, even viewing his affidavit in a light most favorable to defendant, he failed to "depict circumstances that would excuse his failure to object to plaintiff's repeated billings." On the contrary, he admitted to signing an agreement to engage plaintiff's services for a fee, he never objected to the bills received, and actually sent payments to plaintiff. Also, even if the "circumstances" as he described them could explain his "silence, mutual assent to an account stated may also be established by payments on the account." Under the circumstances, "the reasonable inference from defendant's inaction and partial payment was that he assented to the amount due and, thus, an account stated was established." Affirmed.
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