In this action seeking payment of attorney fees, defendant, Timothy Bennett, appeals as of right the trial court’s order granting summary disposition to plaintiff, attorney Stephen Dunn, on his claims for breach of contract and account stated. Plaintiff has filed a cross-appeal, challenging the trial court’s entry of summary disposition in defendant’s favor on plaintiffs conversion claim.
This appeal arises from defendant’s engaging the services of plaintiff to represent him in actions that were brought against defendant by the Internal Revenue Service (IRS). Defendant had purchased a home from his father and had allegedly leased the property to his mother. The IRS asserted that defendant’s mother had transferred her interest in the property without receiving consideration in order to avoid a federal tax lien. Thus, the IRS sent a “Notice of Tax Lien,” listing defendant as a “nominee or transferee” of his mother. Defendant believed the lien to be improper and, with the aid of his brother, attorney Kevin Bennett, sought legal advice from plaintiff, a tax attorney with 26 years of practice experience. On March 27, 2009, plaintiff signed and returned a letter entitled “Re: Engagement Agreement Concerning Legal Representation.” The engagement agreement confirmed that defendant had retained plaintiffs firm, Demorest Law Firm, PLLC (Demorest), to represent him concerning the lien
Plaintiff represented defendant for more than two years in a federal suit to remove a federal tax lien, ultimately reaching a settlement under which the property was sold. In keeping with the settlement agreement, the Internal Revenue Service collected $25,110.77 from the proceeds of the sale and defendant received $40,110.77. During the course of the litigation, defendant paid approximately $20,000 for plaintiffs legal services, but refused payment of the remaining balance, $116,361.21. Plaintiff filed suit against defendant, alleging claims of (1) conversion, (2) account stated, and (3) breach of contract. The trial court granted summary disposition to plaintiff as to breach of contract and account stated, but granted defendant’s motion for summary disposition as to conversion. This appeal then ensued.
“Appellate review of a motion for summary disposition is de novo.” Spiek v Dep’t of Transp,
Turning first to plaintiff’s account-stated claim, we conclude that no material question of fact exists and that the trial court did not err by granting summary disposition. An “account stated” refers to a “contract based on assent to an agreed balance,” which, like all contracts, must be created through mutual assent. Fisher Sand & Gravel Co v Neal A Sweebe, Inc,
In this case, plaintiff submitted documentary evidence establishing that he represented defendant for more than two years, during which time he sent defendant
13. ... I sought legal advice and possible representation. I, and my brother Kevin Bennett, consulted with [plaintiff] at [Demorest]. [Plaintiff] told me that I had a very good case . .. and that he could get the IRS to pay my legal fees and costs. I signed the “engagement letter,” and [plaintiff] initiated litigation.
14. The litigation ensued, and the amounts stated on the legal billings were becoming excessive, and seemed to approach and/or exceed the one-half value of the ... property. Because of [plaintiffs] representation that he would recover my legal fees and costs from the IRS, I believed that it was worthwhile to proceed with the litigation, and in good faith, I paid [Demorest] approximately. .. $20,000, mostly on credit cards.
15. I did not and would not have agreed to pay any attorney a legal fee that exceeded or even approached the one-half value of the . .. property. Again, I fully relied upon [plaintiffs] representation that he would get his fees and costs from the IRS and I would be refunded the payments I had already made to [Demorest],
16. After the deposition of my father Gary Bennett, I told [plaintiff] that I could not pay him any more money, and [plaintiff] responded by telling me that the case had become a contingency fee case, meaning that he would not get paid any additional] fees unless he recovered them from the IRS, as he had represented he would. I relied upon [plaintiffs] representation, and continued with the case.
17. Before the trial date, [plaintiff] told me that he would “waive his fees” if he could get the IRS to remove the lien .... I understood that to mean that he would not ask me to pay him anything in addition to what I had already paid to [Demorest],
Even viewing his affidavit in a light most favorable to defendant, as a general matter, defendant agrees with the basic facts underlying plaintiff’s claim. First, defendant’s affidavit does not dispute that plaintiff completed the work or that he incurred the expenses for which he sought payment from defendant. Second, defendant does not aver that he did not receive monthly billings. Third, defendant does not state in his affidavit that he offered timely objections to the billings; in other words, he never claims to have told plaintiff that he did not owe the amounts reported. Lastly, defendant also fully admits in his affidavit that he made payments on the amounts due, in an amount approximating $20,000. In short, defendant has not contradicted the essential facts underlying plaintiff’s account-stated claim.
Rather than submit documentary evidence contradicting the material elements of plaintiffs claim, the main thrust of defendant’s argument appears to be that no objection was necessary under the circumstances that he describes in his affidavit. Defendant is correct that when silence forms the basis for inferring assent
Regarding plaintiffs breach-of-contract claim, we also conclude that the trial court did not err in granting summary disposition. A party claiming a breach of contract must establish “(1) that there was a contract, (2) that the other party breached the contract and, (3) that the party asserting breach of contract suffered damages as a result of the breach.” Miller-Davis Co v Ahrens Const, Inc (On Remand),
In response, defendant asserts first that the fee arrangement described in the engagement agreement
does not apply because plaintiff was not a party to the arrangement. However, defendant’s contention in this regard is insufficiently briefed and, thus, abandoned on appeal. Blackburne & Brown Mortgage Co v Ziomek,
In the alternative, defendant argues that even if the written agreement covers his relationship with plaintiff, the parties orally modified their arrangement. Defendant waived his claim of modification by failing to raise it as an affirmative defense and support it with facts in his responsive pleadings. MCR 2.111(F)(3); Attorney General ex rel Dep’t of Environmental Quality v Bulk Petroleum Corp,
To show a mutual agreement to modify the express written terms, defendant does not present evidence of a written modification; he relies instead on the averments in his affidavit as detailed earlier, which can be characterized as containing three alleged amendments: (1) plaintiffs representation that legal fees and costs would be collected from the IRS; (2) plaintiffs statement that the case had become a “contingency fee case”; and (3) plaintiffs statement that he would “waive his fees.” From Paragraph 13 of defendant’s affidavit, it appears he asserts that plaintiff made the representations regarding payment by the IRS before or contemporaneously with the signing of the written agreement. Consequently, the parol evidence rule bars admission of this evidence to vary the unambiguous contract terms. UAW-GM Human Resource Ctr v KSL Recreation Corp,
Defendant’s averments that plaintiff stated the case was a “contingency case” or that he would “waive his fees” come closer to providing some evidence of oral modification. However, viewing defendant’s affidavit in a light most favorable to him, his assertions do not show clear and convincing evidence of mutual modification, that is, “express oral or written agreement.” Quality Prods & Concepts Co,
Finally, we conclude that the trial court properly granted summary disposition to defendant on the conversion claim and
In this case, plaintiff asserts that he had an attorney’s charging lien on the funds defendant received from the proceeds of the sale and that defendant’s refusal to surrender these funds constituted actionable conversion. As an initial matter, the issue thus appears to be whether plaintiff in fact had a charging lien on the funds in question. “Michigan recognizes a common law attorney’s lien on a judgment or fund resulting from the attorney’s services.” Miller v Detroit Auto Inter-Ins Exch,
Affirmed. Neither party having prevailed in full, we do not assign costs. MCR 7.219.
Notes
Contrary to plaintiffs arguments, defendant’s various briefs on appeal were timely filed as required by MCR 7.212(A) (1) (a) (iii) and MCR 7.212 (A) (2) (a) (ii).
The trial court also considered plaintiffs conversion claim under MCR 2.116(C)(8); however, because the court reviewed the entire record, not simply the pleadings, we limit our review to its disposition under MCR 2.116(C)(10). See Steward v Panek,
Aside from the “circumstances” surrounding his arrangement with plaintiff, defendant expressly denies the existence of an account stated, averring that he “did not and would not have agreed to pay any attorney a legal fee that exceeded or even approached the one-half value of the ... property.” However, “[sjummary disposition cannot be avoided by conclusory assertions that are at odds either with prior sworn testimony of a party or, as here, actual historical conduct of a party.” Aetna Cas & Surety Co v Ralph Wilson Plastics Co,
Also, in making these arguments, he ignores entirely the “Assignment Agreement,” which assigned collection rights for defendant’s account to plaintiffs new firm.