Estate of Reginald Mills v. Bryce Kearn
333643
Mich. Ct. App.Dec 12, 2017Background
- Wrongful-death suit arising from a 2015 vehicle-motorcycle collision that killed Reginald Mills; plaintiff is Mills’s personal representative.
- Plaintiff was referred to Jonathan Marko while Marko worked for Rasor Law Firm; Marko alleges an employment/fee-split agreement entitling him to 40% of contingency fees on cases he brought in.
- Marko left Rasor before the Mills case settled and asserted a lien on any settlement proceeds recovered in that case.
- Rasor Law Firm moved to terminate Marko’s asserted lien, arguing only the law firm (which contracted with plaintiff) could assert a charging lien; Marko argued he had an express agreement with Rasor creating an equitable lien and that no contract with plaintiff was required.
- Trial court terminated Marko’s lien, finding (1) Marko had an adequate remedy at law (breach-of-contract claim against Rasor) so equitable lien was unavailable and (2) Marko lacked a charging lien because he had no contract with plaintiff. Marko appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marko is entitled to an equitable lien on settlement proceeds | Marko: his express fee-split agreement with Rasor creates an equitable lien on the identified fund; no contract with plaintiff is required | Rasor: Marko lacks an equitable lien because he has an adequate remedy at law (breach of contract against Rasor) and no charging lien without a contract with plaintiff | Court: No equitable lien — Marko has an adequate legal remedy (breach of contract), so equitable lien improper |
| Whether Marko may assert a charging lien on plaintiff’s recovery | Marko did not press a charging-lien theory on appeal | Rasor: charging lien requires a contract with the client (plaintiff), which Marko lacks | Court: No charging lien — Marko has no contract with plaintiff |
| Whether collateral estoppel from a prior case (Ford v Woodward Tap) bars relitigation | Marko: prior litigation decided he was entitled to an equitable lien | Rasor: prior decision arose from a different transaction and thus lacks preclusive effect | Court: No collateral estoppel — prior case involved different plaintiffs/transaction, so not preclusive |
| Whether alleged solvency or litigation burden makes legal remedy inadequate | Marko: litigating breach of contract would be costly/delayed and Rasor has solvency/financial issues making legal remedy insufficient | Rasor: cost/delay do not render legal remedy inadequate; record does not show insolvency preventing collection | Court: Costs/delay and asserted solvency issues do not make legal remedy inadequate; Marko may pursue breach-of-contract relief |
Key Cases Cited
- Johnson v. Bush Lumber Co., 258 Mich 306 (1922) (defines equitable lien as right to subject property in equity to payment of a claim)
- Warren Tool Co. v. Stephenson, 11 Mich App 274 (1968) (agreement that a clearly identified fund secures an obligation gives rise to an equitable lien)
- In re Moukalled Estate, 269 Mich App 708 (2006) (equitable lien cannot be imposed if proponent has an adequate remedy at law)
- Yedinak v. Yedinak, 383 Mich 409 (1970) (adequacy of legal remedy bars equitable lien relief)
- Ashbaugh v. Sinclair, 300 Mich 673 (1942) (same principle regarding adequate remedy at law)
- George v. Sandor M. Gelman, P.C., 201 Mich App 474 (1993) (describing charging/attorney’s lien tied to lawyer-client relationship)
- Barrow v. Pritchard, 235 Mich App 478 (1999) (standard for collateral estoppel review)
- Ditmore v. Michalik, 244 Mich App 569 (2001) (collateral estoppel requires issue actually and necessarily determined in prior proceeding)
- Young v. Detroit City Clerk, 389 Mich 333 (1973) (courts reluctant to apply res judicata on questions of law absent same subject matter/transaction)
- Liggett Rest Group, Inc. v. City of Pontiac, 260 Mich App 127 (2003) (appellate court will not search for authority when party fails to cite support)
- Maclean v. Fitzsimons, 80 Mich 336 (1890) (insolvency must be alleged to defeat legal remedy; solvency supports adequacy of legal remedy)
- Madugula v. Taub, 496 Mich 685 (2014) (equity grants broad power to fashion relief; solvency not necessarily determinative of equitable claims)