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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

GREGORY REED AND ASSOCIATES, P.C.,

Plaintiff-Appellant,

UNPUBLISHED

March 20, 2018

v No. 335939

Wayne Probate Court

ELAINE STEELE, Personal Representative of the 

Estate of ROSA LOUISE PARKS, Deceased,

LC No. 2016-815274-CZ

Defendant-Appellee.

Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

Plaintiff appeals by right an order dismissing its claim against defendant. The probate 

court found that plaintiff’s 2016 complaint to enforce an attorney charging lien was barred by its 

prior claim for breach of contract in 2006. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Many of the facts are not in dispute and are best summarized in the probate court’s 

September 20, 2016 order granting defendant summary disposition:

In 1999, the decedent, Rosa Louise Parks, purportedly requested plaintiff, 

Gregory J. Reed and Associates, to prepare a retainer agreement and represent her 

in a federal lawsuit against the record companies and the rap group “OutKast” to 

protect her name and legacy. Plaintiff hired other attorneys and law firms, the 

identities of whom are not germane to this proceeding, to assist with the suit. 

Decedent entered into a contingency fee agreement and agreed in writing to pay 

33 1/3% of any settlement obtained in the case. During the course of the federal 

litigation (case number 99-cv-76405), the federal district court appointed a 

Guardian ad Litem (GAL) to represent decedent’s interests due to her health 

condition.

After six and a half years of contentious litigation that made it all the way 

to the United States Supreme Court, the case ultimately settled in April of 2005. 

After the settlement, fees were apportioned and allocated. As part of this 

apportionment of fees, the attorney for the GAL only approved a portion of the 

attorney fees and expenses requested. He allowed a limited number of expenses, 
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including payment to the GAL. The allocation of attorney fees and costs was 

questioned in the federal court. On August 10, 2005, the court addressed the fees 

issue and entered an order adopting the GAL’s attorney’s allocation of attorney 

fees and costs. The court also denied a motion for reconsideration of the 

allocation in September of 2005. Plaintiff appealed the federal court’s decision to 

the United States Court of Appeals for the Sixth Circuit. Decedent passed away in 

October 2005.

After decedent’s death, plaintiff and his legal team presented a claim to 

the personal representatives of the decedent’s estate pursuant to MCL 700.7806, 

seeking enforcement of the retainer agreement and requesting a total of $236,818 

in attorney’s fees generated by the federal lawsuit. The claim was disallowed by 

the estate and a notice of disallowance was sent to plaintiff and the attorneys on 

June 19, 2006. Subsequently, on August 23, 2006, plaintiff and the attorneys filed 

a civil action or complaint in this court, case number 2006-708950-CZ, seeking 

unpaid attorney fees from the decedent’s GAL and the personal representatives of 

the decedent’s estate.

On February 7, 2007, this court, on its own motion, granted summary 

disposition pursuant to MCR 2.116(C)(7), (8), and (10) in favor of the personal 

representatives of the estate and dismissed the action. The court found that there 

was no legal or factual basis to consider the request for relief filed by plaintiff and 

the others. Specifically, the court concluded that “pursuant to the clear language 

of MCL 700.3806(1), the complaint should be dismissed as a matter of law as 

untimely and beyond the scope of the period allowed by statute.” Reed v 

Shakoor, unpublished opinion of the Wayne County Probate Court, issued 

February 7, 2007 (Docket No. 2006-708950-CZ).

On July 11, 2007, the United States Court of Appeals for the Sixth Circuit 

issued an opinion, under seal, granting plaintiff costs in the amount of $125,000. 

The Sixth Circuit also found that plaintiff’s appellate fees were not encompassed 

within the contingency fee agreement entered into by decedent and plaintiff. The 

court expressed no opinion as to whether the appellate fees are owed, by whom 

they are owed, or; if owed, the amount. On August 30, 2007, on remand, the 

federal district court entered an order distributing the attorney fees according to 

the Sixth Circuit’s mandate. 

On December 17, 2015, plaintiff submitted a claim to the defendant in the 

amount of $192,000, which included $125,000 in litigation costs as awarded by 

the federal district court pursuant to the Sixth Circuit Court of Appeals opinion 

and paragraph 6 of the retainer agreement and $67,000 in appellate attorney fees. 

On December 22, 2015, defendant disallowed the claim. 

On February 23, 2016, plaintiff filed a “Complaint To Enforce Attorney’s Charging 

Lien” against defendant. Defendant filed a motion for summary disposition, arguing, inter alia,

that summary disposition was appropriate under MCR 2.116(C)(7) because res judicata barred 

plaintiff’s duplicative claim. Defendant noted that plaintiff’s new complaint was an exact 
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duplicate of plaintiff’s 2006 action, which was titled “Complaint for Unpaid Attorney’s Fees and 

Costs By Guardian Ad Litem and From Decedent’s Estate Brought Pursuant to MCL § 700.3806 

After Receipt of a Notice of Disallowance.” Although the 2006 action was based on breach of 

contract and the 2016 action was founded on an attorney’s lien, defendant maintained that it was 

a distinction without a difference. Both the 2006 action and the 2016 action requested the same 

relief for the same reasons.

The probate court agreed and concluded:

Applying the transactional test here, this court finds that plaintiff’s claims 

in the instant case arose out of the same transaction as the claims in the 2006 

action in Reed. A single group of operative facts gives rise to plaintiff’s assertion 

of relief in both cases. Both actions originate from attorney fees and costs that 

were incurred in representing the decedent in the federal lawsuit against the rap 

group OutKast and from the contingency fee agreement signed by the decedent in 

1999. In the 2006 complaint, plaintiff requested $192,000 in unpaid attorney fees 

for services rendered in the OutKast lawsuit. Significantly, plaintiff alleged in the 

complaint that decedent entered into a binding retainer agreement in 1999 and 

agreed to pay him 33 1/3% of any settlement obtained. For reasons unknown, 

plaintiff did not also pursue the fees and costs on a theory of an attorney’s 

charging lien, despite the allegation being based on the same facts as the claim 

theory. He also did not appeal the decision in Reed. Thus, plaintiff’s claim in the 

instant case is merely an alternate theory for recovery in a dispute over 

entitlement to attorney fees and costs, which was clearly at issue in the first 

action. 

Plaintiff moved for reconsideration. In particular, plaintiff argued that res judicata did 

not apply to its 2016 compliant to enforce a charging lien because the complaint was based on 

the 2007 federal court orders directing distribution of attorney fees and costs and was, therefore, 

not part of the time component for the 2006 transaction. Plaintiff maintained that the federal 

court’s distribution order did not become a “fact” until the Sixth Circuit’s order and could not be 

related in time to the 2006 order. Plaintiff argued that the probate court conflated a future fact 

with a past fact under the transaction test. 

The probate court disagreed, noting:

Plaintiff attempts to bypass res judicata by claiming that the current complaint is 

based on the 2007 order. However, the opinion from the United States Court of 

Appeals for the Sixth Circuit and the subsequent District Court order determined 

that plaintiff was entitled to an award of attorney fees and costs. It did not address 

how plaintiff was to enforce that award.

The current complaint raises issues relating to the method of enforcing the 

purported entitlement to attorney’s fees, which was the same issue in the 2006 

complaint. As explained in the September 20 opinion, but actions originated from 

attorney fees and costs that were incurred in representing the decedent, Rosa 

Louise Parks, in a federal lawsuit against the rap group OutKast and from the 
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contingency fee agreement signed by the decedent in 1999. A single group of 

operative facts gave rise to plaintiff’s assertion of relief in both cases. In the 2006 

complaint, plaintiff requested $192,000 in unpaid attorney fees for services 

rendered in the OutKast lawsuit, which is the same amount he requests in the 

current complaint. Plaintiff did not also pursue fees and costs on a theory of an 

attorney’s charging lien in the 2006 action, despite the allegation being based on 

the same facts as the claim theory. Thus, plaintiff has failed to meet its burden and 

establish palpable error. 

Plaintiff now appeals as of right.

II. ANALYSIS

On appeal, plaintiff argues that the trial court erred in finding that the doctrine of res 

judicata operated to bar its 2016 action. We disagree.

Summary disposition is appropriate under MCR 2.116(C)(7) if a claim is barred by a 

prior judgment. RDM Holdings, LTD v Continental Plastics Co, 281 Mich App 678, 687; 762 

NW2d 529 (2008).

Under MCR 2.116(C)(7) (claim barred by prior judgment, i.e., res

judicata), this Court must consider not only the pleadings, but also any affidavits, 

depositions, admissions, or other documentary evidence filed or submitted by the 

parties. The contents of the complaint must be accepted as true unless 

contradicted by the documentary evidence. This Court must consider the 

documentary evidence in a light most favorable to the nonmoving party. If there is 

no factual dispute, whether a plaintiff’s claim is barred under a principle set forth 

in MCR 2.116(C)(7) is a question of law for the court to decide. If a factual 

dispute exists, however, summary disposition is not appropriate. [RDM Holdings, 

281 Mich App at 687 (citations omitted).]

“The doctrine of res judicata is intended to relieve parties of the cost and vexation of 

multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication, that is, to 

foster the finality of litigation.” Begin v Mich Bell Tel Co, 284 Mich App 581, 598; 773 NW2d 

271 (2009), overruled on other grounds 494 Mich 10; 831 NW2d 849 (2013). 

Consequently, res judicata bars a subsequent action between the same 

parties when the evidence or essential facts are identical. A second action is 

barred when (1) the first action was decided on the merits, (2) the matter 

contested in the second action was or could have been resolved in the first, and (3) 

both actions involve the same parties or their privies. 

Michigan courts have broadly applied the doctrine of res judicata. They 

have barred, not only claims already litigated, but every claim arising from the 

same transaction that the parties, exercising reasonable diligence, could have 

raised but did not. [Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999) 

(internal citations omitted).]
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“Whether a factual grouping constitutes a transaction for purposes of res judicata is to be 

determined pragmatically, by considering whether the facts are related in time, space, origin or 

motivation, and whether they form a convenient trial unit.” Adair v State, 470 Mich 105, 125; 

680 NW2d 386, 398 (2004), quoting 46 Am Jur 2d, Judgments 533, p 801. “The doctrine applies 

to every point which properly belonged to the subject of litigation, and which the parties, 

exercising reasonable diligence, might have brought forward at the time. If the same facts or 

evidence would sustain both, the two actions are the same for the purpose of res judicata.” [In re 

Consumers Energy Application For Rate Increase, 291 Mich App 106, 121; 804 NW2d 574

(2010), quoting Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 11; 672 NW2d 351 

(2003).

First, we reject plaintiff’s argument to the extent plaintiff cites federal law and claims that 

the distribution order acted to extinguish the underlying debt and create a new cause of action. 

Plaintiff never made this argument in the probate court. 

Michigan generally follows the “raise or waive” rule of appellate review.

Under our jurisprudence, a litigant must preserve an issue for appellate review by 

raising it in the trial court. Although this Court has inherent power to review an 

issue not raised in the trial court to prevent a miscarriage of justice, generally a 

failure to timely raise an issue waives review of that issue on appeal. 

The principal rationale for the rule is based in the nature of the adversarial 

process and judicial efficiency. By limiting appellate review to those issues raised 

and argued in the trial court, and holding all other issues waived, appellate courts 

require litigants to raise and frame their arguments at a time when their opponents 

may respond to them factually. This practice also avoids the untenable result of 

permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that 

proved unsuccessful. Generally, a party may not remain silent in the trial court, 

only to prevail on an issue that was not called to the trial court's attention. Trial 

courts are not the research assistants of the litigants; the parties have a duty to 

fully present their legal arguments to the court for its resolution of their dispute.

[Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (footnotes 

omitted).]

Additionally, we decline to consider plaintiff’s argument that its 2016 complaint was based on 

the 2007 federal distribution order and was, therefore, not part of the time component for the 

2006 transaction. “Where an issue is first presented in a motion for reconsideration, it is not 

properly preserved.” Vushaj v Farm Bureau Gen Ins Co of Michigan, 284 Mich App 513, 519; 

773 NW2d 758 (2009).

Plaintiff’s 2016 action is barred by res judicata. Plaintiff does not dispute that the action 

involves the same parties and that the 2006 action was decided on the merits. The only 

remaining factor is whether the 2016 claim could have been brought in the 2006 action. Plaintiff 

has not answered why it was precluded from bringing a claim for an attorney charging lien in its 

prior action. The fact remains that both in 2006 and then 10 years later in 2016, the operative 

facts centered on the contingency fee agreement.
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Plaintiff cites Oldham v Pedrie, 2015 Colorado Court of Appeals 95 (July 16, 2015), in 

support of its claim that a secured creditor’s lien is not extinguished when the creditor presents 

an “unconditional” or unsecure claim against a decedent’s estate and fails to pursue the 

disallowed claim within 63 days. Plaintiff argued that its 2006 claim was presented as a general

unsecured claim and was therefore analogous to the unconditional claim in Oldham. 

Oldham does not help plaintiff’s case. The Colorado Court of Appeals held that “under 

the Colorado and Michigan probate codes, a secured creditor’s lien on real property is not 

extinguished when the creditor presents an unconditional claim[1] against a decedent’s estate but 

does not pursue a disallowed claim within sixty-three days.” Oldham, ___ P 3d ___ (2016 COA 

95). The case at bar does not involve real property or a mortgage. Moreover, the Oldham case 

had nothing to do with res judicata. At issue in that case was whether the mortgagee could still 

seek to foreclose on property under a deed even though the estate denied the mortgagee’s claim. 

Here, plaintiff’s 2006 action was dismissed as timely. Nothing in Oldham helps plaintiff 

rehabilitate its claim.

Affirmed. Having prevailed in full, defendant may tax costs. MCR 7.219.

/s/ Kirsten Frank Kelly 

/s/ William B. Murphy 

/s/ Michael J. Riordan 

 1 “A conditional claim is one where a secured creditor expressly asserts the right to recover from 

the assets of an estate any amount not provided by the security.” Oldham, ___ P 3d ___ (2016 

COA 95), n 1.