DANIEL I PASSMAN V FORD MOTOR CO
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STATE OF MICHIGAN
COURT OF APPEALS
DANIEL I. PASSMAN,
UNPUBLISHED
April 10, 2008
Plaintiff-Appellee,
V
FORD MOTOR COMPANY, BRIGHTON
FORD-MERCURY INC, TOM HOLZER FORD
INC and FORD MOTOR CREDIT COMPANY,
Nos. 270088; 272490
Wayne Circuit Court
LC No. 05-512945-NZ
Defendant-Appellants.
Before: Zahra, P.J., and White and O’Connell, JJ
PER CURIAM.
Defendants appeal as of right a March 24, 2006, order entered in the Wayne County
Circuit Court, awarding plaintiff $17,588 in attorneys’ fees and costs. This appeal arises from a
vehicle warranty suit. The parties eventually agreed to settle the matter by replacing plaintiff’s
leased vehicle with a new vehicle, and allowing the court to assess attorneys’ fees and statutory
costs. The central issue on appeal is the amount of attorneys’ fees awarded. We vacate the
award of attorney fees and remand for consideration of the attorney fee issue before a different
trial judge.
Facts and Procedure
On June 6, 2003, plaintiff leased a new 2003 Ford Mustang from defendant Brighton
Ford-Mercury Inc. He began experiencing problems with the car and brought it to several
authorized Ford dealerships for repair. Plaintiff claimed the car was never successfully repaired,
and on April 29, 2005, filed a complaint alleging breach of warranties and revocation of
acceptance under the Michigan Uniform Commercial Code (MUCC) (MCL 440.2103, et seq.)
liability under Magnuson-Moss Warranty Act (MMWA) (15 USC 2301, et, seq.), violation under
Michigan Consumer Protection Act (MCPA) (MCL 445.901 et. seq.) and violation of Michigan
Vehicle Service and Repair Act (MVSRA) (MCL 257.1301 et seq.).
Defendants answered the complaint on May 27, 2005. On June 10, 2005, defendants
filed a motion to disqualify plaintiff counsel, or alternatively, to screen attorney Scott Mussin
from the case. Defendants asserted that Mussin had been employed as a paralegal for five years
at Ford before gaining admission to the Michigan State Bar in November 2004. Defendants
claim that Mussin continued his employment with Ford until beginning his employment with
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plaintiff counsel on February 28, 2005. Defendants claim that Mussin should be screened
because he “had access to privileged, confidential, and highly sensitive information during his
five years at Ford.” Plaintiff eventually agreed to screen Mussin from this litigation.
The parties commenced the discovery process in June of 2005 and defendants maintain
that the parties for all intents and purposes reached a settlement on October 31, 2005.
Defendants aver that proof of the settlement date is a November 17, 2005 e-mail that indicates
that plaintiff had selected a replacement vehicle. Plaintiff, however, maintains that the parties
reached a settlement on January 19, 2006. Plaintiff relies on the itemized billing statement that
indicates an offer was made on October 31, 2005, but settlement was reached only after the
exchange of over 50 e-mails and several drafts of proposed releases.
On March 7, 2006, plaintiff filed a motion to “assess statutory attorney fees and costs
pursuant to settlement agreement.” Plaintiff sought statutory fees under the MMWA, Michigan
Lemon Law (MCL 257.1401, et seq.) and the MUCC. In the motion, plaintiff counsel Dani
Liblang, claimed she “is recognized as one of only a handful of attorneys in this state who
specializes in consumer litigation.” Liblang relied on record statements of trial courts indicating
her expertise in the field, and attached an itemized billing. She claimed a $350 hourly rate for
herself, and specifically noted that three different courts had awarded her an hourly rate of $250,
and that in 2004, she was awarded an hourly rate of $275. She also claimed an hourly rate of
$250 for her associates. She requested $20,078 in attorneys’ fees and $543.90 in costs.
Defendants responded by noting that no depositions were taken, no experts were retained,
no motions were heard and no trial or arbitration took place. Defendants challenged cumulative
fees including “4.4 hours of inter-office memos and e-mails, 4.2 hours for enclosure letters, 7.9
hours for phone calls, 3.3 hours for filing documents, 3.7 hours for serving documents, and 19.5
hours for preparing documents.” Further, defendants claim that 75% of the bill arose after
defendants’ October 31, 2005 offer to buy back plaintiff’s vehicle. Defendants also claimed that
plaintiff improperly billed $5,635 to research defendants’ motion to disqualify Mussin.
Specifically, defendants claim they should not be required to pay plaintiff counsel to comply
with the Michigan Rules of Professional Responsibility, particularly where plaintiff did not
challenge the motion to disqualify Mussin and agreed to screen him from the case.
The parties appeared before the trial judge on March 24, 2006. The trial judge did not
address defendants’ challenges to the amount of time allegedly expended in prosecuting this
case. The trial judge also did not address the hourly rate for Liblang’s associates, which
remained at $250 an hour. Likewise, the trial judge did not address the propriety of plaintiff’s
counsel charging fees to determine whether attorney Mussin should be precluded from working
on this case. The trial judge did, however, reduce attorney Liblang’s hourly fee from $350 per
hour to $275 per hour. An order was entered awarding plaintiff $17,558 in attorney fees and
$543.90 for costs. Defendants filed a motion for reconsideration on April 7, 2006, which was
denied on April 10, 2006.
Also on April 10, 2006, defendants filed a motion to disqualify the trial judge pursuant to
MCR 2.003. In their motion, defendants claimed that three days after the motion hearing on
plaintiff’s request for attorneys’ fees, defense counsel discovered, through another attorney, that
plaintiff’s counsel had represented the trial judge in a case similar to the instant case and that the
case in which the judge was a litigant had been resolved in early 2005, around the same time the
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present case was filed. Because neither plaintiff counsel nor the trial judge disclosed this
relationship to defendants, defendants requested that the trial judge disqualify himself under
MCR 2.003(B)(1), which refers to personal bias or prejudice for or against a party or attorney.
The motion was noticed for April 28, 2006, and then for May 5, 2006. In the meantime,
on May 1, 2006, defendants filed in this Court a claim of appeal from the March 24, 2006, order
awarding attorney fees.
At the hearing on the motion to disqualify, the following exchange occurred:
JUDGE: Okay. Plaintiff’s attorney, Dani Liblang, represented me regarding a
defective General Motors engine. There was never a lawsuit filed. The case was
settled, the matter, I should say was settled without a lawsuit ever being filed
amicably between the parties. And her representation of me ended in, I believe,
March of 2005.
DEFENSE COUNSEL: One month prior to this case being filed before your
Honor, Judge.
JUDGE: Yeah, but you’ve got to look at where we are today. And this is Ford
Motor Company, not General Motors. Perhaps if it was a GM. I don’t see a legal
basis. I’ll deny it, but you can go to the Chief judge and reargue it.
The trial court entered a praecipe order denying the motion on May 5, 2006.
On June 19, 2006, defendants filed with the chief judge of the Wayne County Circuit
Court a motion for disqualification of the trial judge. In responding to the motion, plaintiff
claimed that the circuit court no longer had jurisdiction, pursuant to MCR 7.203(A), because the
motion was filed after the filing of a claim of appeal, and in any event the trial judge correctly
denied the motion since the court rule does not require disqualification of a judge when he or she
was previously represented by an attorney.
The parties appeared before the chief judge on June 29, 2006, at which time the chief
judge stated her concern that the representation was not disclosed to defendants, which, in her
opinion, should have been disclosed. Nonetheless, the chief judge concluded that she lacked
jurisdiction to address the motion to disqualify because defendant already filed a claim of appeal
before this Court. Thereafter, defendant filed an application for leave to appeal to this Court to
address the disqualification issue. This Court granted defendants’ application for leave to appeal
and consolidated Docket No. 272490 (the disqualification appeal) with Docket No. 270088 (the
appeal by right of the attorney fees imposed by the trial court).1
1
The only question presented in Docket No. 272490 concerns the disqualification of the trial
judge, which is also addressed in the earlier filed brief on appeal in Docket No. 270088 at Issue
VII. Accordingly, Docket No. 272490 and Issue VII of Docket No. 270088 will be addressed
together.
(continued…)
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Analysis
When this Court reviews a motion to disqualify a judge, the trial court’s findings of fact
are reviewed for an abuse of discretion; however, the applicability of the facts to relevant law is
reviewed de novo. Armstrong v Ypsilanti Charter Township, 248 Mich App 573, 596; 640
NW2d 321 (2001).
Defendants argue that the trial judge should have been disqualified because an
appearance of impropriety arose from plaintiff counsel’s representation of the judge in an
automobile warranty case that ended only two months before the instant case was filed.
MCR 2.003(B)(1) provides that “[a] judge is disqualified when the judge cannot
impartially hear a case, including but not limited to instances in which . . . [t]he judge is
personally biased or prejudiced for or against a party or attorney.” In Cain v Dep’t of
Corrections, 451 Mich 470, 503; 548 NW2d 210 (1996), the Michigan Supreme Court stated that
“[i]n order for disqualification pursuant to MCR 2.003(B)(1) to be proper, the judge must have
shown actual bias against a party or a party’s attorney.” Apart from MCR 2.003(B)(1), it is the
general rule in Michigan that a trial judge is not disqualified absent a showing of actual bias or
prejudice.2 We agree with plaintiff and the trial judge that defendant failed to show actual bias
or prejudice in this case.
Nonetheless, the requirement to show actual bias is a general rule, to which our Supreme
Court has recognized exceptions. Our Supreme Court has “acknowledge[d that] there may be
situations in which the appearance of impropriety on the part of a judge . . . is so strong as to rise
to the level of a due process violation.” Cain, supra at 512, n. 48. Indeed, a showing of actual
bias is not necessary where “experience teaches that the probability of actual bias ... is too high
to be constitutionally tolerable.” Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352
(1975). Such a situation exists when a judge is enmeshed in matters involving the petitioner
before that judge. Id., at 351.
We recognize that from time to time judges are in need of counsel and that both judges
and lawyers would be placed in awkward situations if, in every instance of representation, the
judge will be indefinitely disqualified from having that lawyer appear before him or her, or if the
facts and circumstances of every representation, no matter how old or how personal, were
required to be disclosed. We conclude, however, that because plaintiff counsel recently
represented the trial judge in a matter similar to the present case, and because the trial judge was
being called upon to determine the appropriate compensation for, or value of, the attorney’s
representation in a similar matter, the trial judge was required to either disclose this relationship
to defense counsel, or recuse himself.
(…continued)
2
Bias or prejudice has been defined as “an attitude or state of mind that belies an aversion or
hostility of a kind or degree that a fair-minded person could not entirely set aside when judging
certain persons or causes.” Cain v Michigan Dept of Corrections, 451 Mich 470, 495, n 29; 548
NW2d 210 (1996), quoting United States v Conforte, 624 F2d 869, 881 (CA 9, 1980).
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Under these circumstances, we conclude the award of attorney fees must be vacated and
this matter remanded for further proceedings before a different trial judge.
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Peter D. O’Connell
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