Theodore Cadwell v. City of Highland Park
Theodore Cadwell v. City of Highland Park
Opinion
*645 Defendant, the city of Highland Park, appeals as of right the trial court order awarding postjudgment attorney fees to plaintiffs, Theodore Cadwell and Glenn Quaker. We conclude that a plaintiff prevailing on an action filed under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq ., may recover postjudgment attorney fees under MCL 15.364. However, because the trial court failed to properly evaluate whether the requested attorney fees were reasonable and appropriate, we vacate the court's order awarding postjudgment attorney fees and remand for further proceedings consistent with this opinion.
I. BASIC FACTS
Cadwell and Quaker were formerly employed by Highland Park as its chief of police and deputy chief of *646 police, respectively. In October 2010, they filed a complaint against Highland Park, which was later amended to add a claim that they were retaliated against in violation of the WPA and their employment agreements. The matter proceeded to a jury trial, and the jury found for Cadwell and Quaker on their contract claims and their claims under the WPA. The jury awarded Cadwell and Quaker $760,680 each, which included $500,000 each in damages for emotional distress. On May 14, 2013, the trial court entered a judgment awarding Cadwell and Quaker each $760,680, plus costs and $47,695.60 in attorney fees.
Highland Park appealed in this Court, which affirmed the jury's verdict but concluded that the award of emotional distress damages was unsupported by the evidence, so remittitur was warranted under MCR 2.611(E).
Cadwell v. Highland Park
, unpublished per curiam opinion of the Court of Appeals, issued May 28, 2015 (Docket No. 318430), p. 7,
For example, in June 2016, the trial court granted Cadwell and Quaker's motion seeking a writ of mandamus compelling *642 Highland Park to place the judgment on its tax rolls. The court denied reconsideration of that motion, and Highland Park appealed in this *647 Court, which dismissed the claim for lack of jurisdiction. Cadwell v. Highland Park , unpublished order of the Court of Appeals, entered July 27, 2016 (Docket No. 333962).
The parties also disputed the appropriate amount of interest due on the judgment. The trial court eventually accepted Cadwell and Quaker's calculation of interest and entered an order in January 2017 stating that as of November 30, 2016, the total balance owed by Highland Park was $433,281.80 and stating that the balance was due immediately. Again, Highland Park filed a claim of appeal with this Court, which was dismissed for lack of jurisdiction. Cadwell v. Highland Park , unpublished order of the Court of Appeals, entered February 8, 2017 (Docket No. 336758). Thereafter, Highland Park filed an application for leave to appeal the January 2017 order regarding interest on the judgment, and in a peremptory order, this Court reversed and remanded for recalculation of the amount of interest due. Cadwell v. Highland Park , unpublished order of the Court of Appeals, entered March 20, 2017 (Docket No. 336969).
In February 2017, the trial court entered an order holding Highland Park in contempt for failing to comply with an August 2016 writ of mandamus that required Highland Park to produce certain documents. Highland Park appealed in this Court, which vacated the contempt order because it was entered without affording Highland Park minimal due process. Cadwell v. Highland Park , unpublished order of the Court of Appeals, entered March 20, 2017 (Docket No. 337061).
The present appeal arises from a motion filed by Cadwell and Quaker on March 22, 2017, which sought additional attorney fees and costs for the efforts their *648 lawyer had expended to enforce and collect on the remittur judgment. They contended that pursuant to the WPA, Highland Park was responsible for their posttrial attorney fees. Cadwell and Quaker supported their motion with a record of the hours spent by their lawyer on the case between March 24, 2016, the day after our Supreme Court denied leave to appeal this Court's opinion remanding for remittitur, and March 21, 2017, the day before the motion for additional attorney fees was filed. The record included a total of 148.8 hours. When multiplied by the requested rate of $400 per hour, Cadwell and Quaker requested additional attorney fees totaling $59,520. The record also listed filing fees of $140. Ultimately, Cadwell and Quaker sought a total of $59,660 for posttrial attorney fees.
Highland Park argued that postjudgment attorney fees were not recoverable under the WPA and that Cadwell and Quaker were improperly attempting to recover attorney fees related to decisions that were ultimately reversed by this Court. At oral argument before the trial court, Cadwell and Quaker contended that fees were appropriate for the time spent trying to recover on the judgment since March 2016. Highland Park argued that it had paid Cadwell and Quaker about $401,000 and that a payment plan would be put in place for the remainder of what was owed. It further requested that if the court awarded attorney fees, the court should only award a reasonable amount, taking into consideration Highland Park's need to zealously advocate the matter posttrial.
After clarifying that the request was for 148.8 hours of work, the trial court stated that Cadwell and Quaker's lawyer "has not included all of the hours that he has spent," that a rate of $200 per hour was *649 "not an insult" but instead took into consideration that Highland Park was financially *643 not in a position to pay more, and that the rate awarded "still might be a little under what somebody" with "30 plus years" of practice would normally receive. Accordingly, the trial court granted the motion, awarding Cadwell and Quaker attorney fees of $29,760, representing 148.8 hours at $200 an hour.
II. ATTORNEY FEES
A. STANDARD OF REVIEW
Highland Park argues that the trial court erred by granting postjudgment attorney fees to Cadwell and Quaker. A trial court's decision to award attorney fees under the WPA is reviewed for an abuse of discretion.
O'Neill v. Home IV Care, Inc.
,
B. ANALYSIS
As a general rule, attorney fees "are not recoverable from the losing party as costs in the absence of an exception set forth in a statute or court rule expressly authorizing such an award."
Haliw v. Sterling Hts.
,
MCL 15.364 provides:
A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.
Highland Park suggests that it should prevail because the attorney fees at issue were "not in furtherance *652 of rendering a judgment under the WPA." We disagree. A plaintiff who prevails on a WPA claim but then must engage in postjudgment legal proceedings in order to collect on his or her judgment is still prosecuting an action brought pursuant to the WPA. Here, although the posttrial motions and appeals did not all directly challenge the merits of Cadwell and Quaker's claims brought under the WPA, we recognize that, generally, Highland Park's posttrial actions were undertaken to limit the effect of the judgment and Cadwell and Quaker's actions were taken in an effort to collect on the judgment they were awarded. Thus, although ostensibly related to subjects such as the proper calculation of interest or the collection of a partially paid judgment, the postjudgment actions were brought under the WPA.
Next, Highland Park argues that under the plain language of the statute, postjudgment attorney fees are not permissible because only attorney fees generated in connection with a judgment following the adjudication of a WPA claim are recoverable. In support, Highland Park focuses on the first sentence of MCL 15.364, which provides that "[a] court,
in rendering a judgment in an action brought pursuant to this act
, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies." (Emphasis added.) Highland Park contends that the language "in rendering a judgment" should be interpreted to mean that attorney fees
*645
can only be awarded in connection with the rendering of the judgment issued following the jury verdict. The Legislature, however, used the indefinite article "a," which denotes the possibility of more than one "judgment." See
*653
Robinson v. Detroit
,
Our conclusion is supported by this Court's decision in
McLemore v. Detroit Receiving Hosp. & Univ. Med. Ctr.
,
Plaintiff apparently seeks to recover the attorney fees incurred defending this appeal. This Court has not previously *654 decided whether appellate attorney fees are recoverable under MCL 37.2802. The subject of this appeal, plaintiff's action, was brought pursuant to the Civil Rights Act. The opinion of this Court is its judgment. MCR 7.215(E)(1). The act permits an award of all costs of litigation including attorney fees when a court renders "a judgment in an action brought pursuant" to the act. MCL 37.2802. Thus, the language of the statute would support such an award. [ McLemore ,196 Mich.App. at 402 ,493 N.W.2d 441 .]
Moreover, we note that this Court has determined in numerous other cases that appellate attorney fees are recoverable under similarly worded statutes. See
Solution Source, Inc.
,
*646
Escanaba & L.S.R. Co. v. Keweenaw Land Ass'n, Ltd.
,
In addition, because the WPA is remedial in nature, it must "be liberally construed to favor the persons the Legislature intended to benefit."
*655
Chandler v. Dowell Schlumberger Inc.
,
Highland Park next argues that even if postjudgment attorney fees are recoverable under the WPA, the trial court's award of attorney fees was not reasonable.
When determining the reasonableness of an attorney fee sought pursuant to a fee-shifting statute,
a trial court must begin its analysis by determining the reasonable hourly rate customarily charged in the locality for similar services. The trial court must then multiply that rate by the reasonable number of hours expended in the case to arrive at a baseline figure. [ Pirgu v. United Servs. Auto. Ass'n ,499 Mich. 269 , 281,884 N.W.2d 257 (2016) (citation omitted).] [ 2 ]
*656 Thereafter, the trial court must consider all of the following "factors to determine whether an up or down adjustment is appropriate":
(1) the experience, reputation, and ability of the lawyer or lawyers performing the services,
(2) the difficulty of the case, i.e., the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,
(3) the amount in question and the results obtained,
(4) the expenses incurred,
(5) the nature and length of the professional relationship with the client,
(6) the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer,
(7) the time limitations imposed by the client or by the circumstances, and
(8) whether the fee is fixed or contingent. [ Id . at 281-282,884 N.W.2d 257 .]
"In order to facilitate appellate review, the trial court should briefly discuss its view of each of the factors above on the record
*647
and justify the relevance and use of any additional factors."
Id
. at 282,
In this case, the trial court apparently determined that $200 per hour was a reasonable hourly rate and that 148.8 hours were the reasonable number of hours expended.
3
However, in determining that $200 an hour was a reasonable hourly rate, the trial court did not rely on any evidence showing that $200 per hour was the "market rate" that "lawyers of similar ability and experience in the community normally charge their
*657
paying clients for the type of work in question."
Smith v. Khouri
,
After determining the hourly rate and the number of hours, the trial court briefly addressed only part of Factor 1, noting that Cadwell and Quaker's lawyer had 30 years of experience. The court did not state whether this factor warranted an upward or downward adjustment, however. The court also addressed an additional consideration-the fact that Highland Park was in a compromised financial situation. The court appears to have essentially determined that because Highland Park could not afford to pay more, the amount of attorney fees should be less than the requested amount. Although a court can consider additional relevant factors when determining whether attorney fees are reasonable,
Pirgu
,
Vacated and remanded to the trial court for reconsideration. We do not retain jurisdiction.
BECKERING, P.J., and O'BRIEN, J., concurred with M. J. KELLY, J.
Cadwell and Quaker argue that the law-of-the-case doctrine and res judicata bar Highland Park from arguing that postjudgment attorney fees are not recoverable under the WPA. We disagree. Under the law-of-the-case doctrine, "[i]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same."
Lenawee Co. v. Wagley
,
Furthermore, "[r]es judicata serves to bar any subsequent action where the first action was decided on its merits, the second action was or could have been resolved in the first action, and both actions involve the same parties or their privies."
Solution Source, Inc. v. LPR Assoc. Ltd. Partnership
,
The
Pirgu
Court was tasked with determining how to properly calculate a reasonable attorney fee award under MCL 500.3148(1), not with determining a reasonable attorney fee under the WPA.
Pirgu
,
We note that although appellate attorney fees are recoverable under MCL 15.364, Cadwell and Quaker only sought recovery of trial-level postjudgment attorney fees.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.