Opinion
No. 351739
10-22-2020
In re ESTATE OF BARRY MORRISH. DARREN FINDLING LAW FIRM, Petitioner-Appellant, v. BRANDON MORRISH and BRETT MORRISH, Respondents-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Probate Court
LC No. 2018-227720-DE Before: SWARTZLE, P.J., and JANSEN and BORRELLO, JJ. PER CURIAM.
In this probate action, petitioner, the Darren Findling Law Firm, appeals as of right the Order Regarding Lien that granted it an attorney's lien against Kathleen Hupp for unpaid attorney fees and costs. The order also provided that petitioner's attorney's lien was in priority behind an award of attorney fees to respondents, Brandon Morrish and Brett Morrish. We affirm.
I. FACTUAL BACKGROUND
This case arises out of the death of Barry William Morrish on May 24, 2018. At the time of his death, Morrish was in a dating relationship with Hupp, who was also a nurse and who had taken on managing Morrish's care. Indeed, Morrish and Hupp had dated from 1994 to 2000, and rekindled their relationship in 2009. According to Hupp, the two were engaged, and married on the day Morrish died. Morrish also had two sons: respondents Brandon and Brett.
On June 14, 2018, Kathleen Hupp filed an application for informal probate in the Macomb Probate Court claiming to be Morrish's wife, and nominated herself as personal representative. The application also listed Brandon and Brett as heirs. Initially, Hupp was appointed personal representative of the estate. However, Hupp was soon replaced by a successor personal representative amid allegations that Hupp had committed fraud and had taken advantage of Morrish's diminished capacity in the months leading up to his death.
Discovery in this case revealed that Hupp had indeed forged Morrish's signature on a codicil to his will and on two change in beneficiary forms related to four accounts Morrish held with Vanguard: three individual accounts, transferrable upon death, and one IRA account. It was also uncovered that Hupp and Morrish were never legally married, despite Hupp's representation that she was Morrish's surviving spouse. Hupp had induced an officiant and friend of Morrish's to fraudulently sign the marriage license after Morrish's death. Upon learning of its client's deceit, petitioner filed a motion to withdraw as Hupp's counsel. That motion was granted by the probate court, and Hupp represented herself for the remainder of the case. Following trial, Hupp was ordered to pay "to pay all attorney fees and costs incurred by Brett Morrish and Brandon Morrish."
After the trial was concluded, petitioner filed a motion in the probate court for an attorney's lien and determination of priority. Petitioner argued that it was retained by Hupp on June 18, 2019, and "[t]hrough the course of litigating this matter, The Darren Findling Law Firm provided extensive services and incurred great expense." Petitioner withdrew from this matter for good cause, and still had a balance of outstanding fees and costs in the amount of $44,901.44. Hupp had failed to render payment for those fees, and petitioner requested that the probate court "impose an attorney charging lien against Kathleen Hupp-Morrish's recovery in this action and/or any distributions she may receive from the Estate of Barry Morrish." Petitioner further argued that any charging lien imposed should have priority over the payment of attorney fees and costs awarded to Brandon and Brett at trial.
The estate's personal representative filed a response to petitioner's motion indicating that the estate "takes no position as to the order of priority of payment as it relates to any distribution Ms. Hupp may receive and will follow the [probate c]ourt's direction as to priority." However, both Brett and Brandon opposed the imposition of an attorney's lien, and argued that in the event an attorney's lien was imposed, it should not have priority over their attorney fee award.
A hearing on petitioner's motion was held on November 12, 2019 where the parties argued consistently with their briefs. Following argument, the probate court explained:
Well, I mean, I'm really having a struggle with this because [petitioner] did benefit the estate to an extent. I mean, the will was admitted; the estate was opened albeit fraudulent information was included on the petition. There was no way for your office to know that at the time, but I did make an order and I entered that Brett and Brandon's attorney fees would be paid from any distribution that Ms. Hupp was to receive, but again, [petitioner] did benefit the estate in a certain manner and I - I can't blame them one ounce for withdrawing after that report came out, and to be fair that put them in the position to not be here during the time of trial to make the request for their attorney fees.The following exchange then occurred:
* * *
Well, I made an order after the trial that indicated that Brett and Brandon's fees were to be paid. I think that's the first priority; therefore, I'm going to deny the petition.
Petitioner. Judge, and I know this might be in [sic] sort of go nowhere argument, but there could be a charging lien granted, it would just be behind priority to them.The probate court entered the following order on November 12, 2019:
The Court. That's right. I don't have-I don't have a problem you putting it that way. I don't-I don't care if she pays-pays every dime of her inheritance to-toward attorney fees quite frankly.
Petitioner. Okay.
The Court. So, I-you can make an order that gives you a charging lien after-
Petitioner. That is in priority behind the claims-
The Court. Priority behind-
Petitioner. -of Brett and Brandon Morrish as placed in the order-
The Court. Pursuant to the order
Petitioner. -of August 7, 2019?
The Court. Yep. That's it.
The Darren Findling Law Firm's Motion for Attorney Lien and Determination of Priority is granted to the extent that the Darren Findling Law Firm is awarded an attorney's lien for fees and costs in the amount of $44,901.44 against any distribution to Kathleen Hupp. The attorney's lien shall be in priority behind the award of attorney fees and costs to Brett Morrish and Brandon Morrish in the Order Following Trial dated Aug. 7, 2019.This appeal followed.
II. STANDARD OF REVIEW
This Court reviews a trial court's decision to impose an attorney charging lien for an abuse of discretion. Reynolds v Polen, 222 Mich App 20, 24; 564 NW2d 467 (1997). An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes. Nahshal v Fremont Ins Co., 324 Mich App 696, 710; 922 NW2d 662 (2018). "Whether a lien is authorized in a particular case is a question of law" that this Court reviews de novo. Ypsilanti Charter Twp v Kircher, 281 Mich App 251, 281; 761 NW2d 761 (2008).
III. ANALYSIS
On appeal, petitioner argues that its attorney's lien has priority over an award of attorney fees to Brett and Brandon, and that in the event its attorney's lien does not have priority, then the attorney's lien and the attorney fee award should be paid on a pro rata basis. However, we conclude that petitioner has waived appellate review of the issues raised on appeal.
"[W]aiver has been defined as the intentional relinquishment or abandonment of a known right." Grant v AAA Mich/Wisconsin, Inc (On Remand), 272 Mich App 142, 148; 724 NW2d 498 (2006). "A party who expressly agrees with an issue in the trial court cannot then take a contrary position on appeal." Id. Initially, the probate court was inclined to deny petitioner's motion for an attorney lien. Specifically, the probate court articulated:
I made an order after the trial that indicated that Brett and Brandon's fees were to be paid. I think that's the first priority; therefore, I'm going to deny the petition.It was then petitioner who suggested to the trial court that it grant its motion for an attorney lien, but make the determination that any lien would be in priority behind the attorney fees awarded at trial. Indeed, petitioner argued, "Judge, and I know this might be in [sic] sort of go nowhere argument, but there could be a charging lien granted, it would just be behind priority to them." The trial court agreed, and entered and order that stated:
The Darren Findling Law Firm's Motion for Attorney Lien and Determination of Priority is granted to the extent that the Darren Findling Law Firm is awarded an attorney's lien for fees and costs in the amount of $44,901.44 against any distribution to Kathleen Hupp. The attorney's lien shall be in priority behind the award of attorney fees and costs to Brett Morrish and Brandon Morrish in the Order Following Trial dated Aug. 7, 2019.
Petitioner not only expressly agreed that its attorney lien would be behind Brett's and Brandon's attorney fee award in priority, but actually suggested that outcome. Now on appeal, petitioner cannot take the contrary position. We conclude that petitioner's arguments on appeal have been waived, and we decline to address them.
Affirmed.
/s/ Brock A. Swartzle
/s/ Kathleen Jansen