Michigan was right forum for attorneys' fees case

By Kelly Caplan
BridgeTower Media Newswires
DETROIT, MI — The cross-border rivalry between Michigan and Ohio has a long and colorful history.

Hurling verbal barbs and insults between football programs is one thing. Stiffing a Michigan law firm for $60,000 in attorneys’ fees is another matter entirely.

This isn’t the first battle in the Court of Appeals for the parties; the original case, filed in Oakland County Circuit Court in September 2016, resulted in the above judgment.

The defendants in Dunn Counsel PLC v Zappone are members of an Ohio family who hired the Oakland County firm’s namesake, Stephen Dunn, to represent them in a civil-forfeiture case in federal court in Toledo.

Dunn also assisted the Zappone family in creating Scrapco LLC; when the bill came due, the family failed to pay.

A breach-of-contract action was filed in Oakland County Circuit Court, and a charging lien motion was filed in the Ohio district court.

The Zappones argued that the Michigan court lacked personal jurisdiction over them and that Oakland County was an inconvenient forum.

But the Ohio family’s motion to dismiss was tossed by the Michigan court; it entered a judgment in Dunn’s favor for his attorneys’ fees — plus interest and costs — for a total of $63,219.71.

The Zappone family appealed; the Michigan Court of Appeals affirmed in part, vacated in part and sent the matter back to Oakland County for further proceedings.

Specifically, that appellate panel concluded that the Oakland County court failed to address defendants’ forum non conveniens argument.

“We must vacate the circuit court’s order and remand this case for the circuit court to consider defendants’ motion in light of the relevant Cray [v General Motors Corp, 389 Mich 382 (1973)] factors.”

Enter the second round of proceedings to hash out the Cray factors — and many of its sub-factors — as well as issues of personal jurisdiction and forum non conveniens.

In July 2019, the trial court again said jurisdiction in Oakland County was proper and the original judgment for Dunn would remain in effect.

And, again, the Zappones appealed.

This latest Court of Appeals panel — Judges Karen M. Fort Hood, Kathleen Jansen and Jonathan Turkel — said the trial court conducted a thorough review of the Cray factors, and did not err when it denied the defendants’ motion to dismiss under the doctrine of forum non conveniens in the unpublished per curiam opinion

They pointed out the doctrine of forum non conveniens isn’t statutory; rather it is common-law doctrine created by the courts, and the plaintiff’s chosen forum is “ordinarily accorded deference.”

Two factors have to be considered — if the forum is convenient or if a more appropriate forum exists — and Michigan Supreme Court in Cray laid out the balancing factors.

And this is where the multiple sub-factors come in.

First, in the trial court, the private interest of the parties was weighed in the interest of Michigan jurisdiction.

The panel agreed, saying the Zappones came to Michigan to solicit Dunn’s representation; they didn’t explain how defending this action in Michigan would involve undue expense or an inability to attend trial.

Next, the panel said the matter is ultimately a collection action seeing attorney fees — and the proofs required for Dunn to prove his case are made up of time logs and billing records in Oakland County.

As for enforceability and harassment, the appellate court agreed with the trial court that neither party has identified issues with either factor.

While the Zappones argued that the ease, expense or expedition of trial would be best served in Ohio, they failed to name any practical problems that lead to this conclusion.

Finally, the Zappones argued that Ohio jurisdiction was required — and that Ohio law controlled.

But the appeals panel said the lower court got it right when it held that Michigan was the appropriate forum.

“[D]efendants are mistaken. This is a collection action, and where defendants came to Michigan to solicit legal representation and failed to pay agreed upon fees under the Engagement Agreement between the parties that was entered into in the State of Michigan, Michigan law controls,” the court said.