                            STATE OF MICHIGAN

                            COURT OF APPEALS


DEPARTMENT OF CIVIL RIGHTS ex rel                                    UNPUBLISHED
MAZYN BARASH,                                                        August 30, 2016

               Plaintiff,

and

MAZYN BARASH,

               Plaintiff-Appellant,

v                                                                    No. 327524
                                                                     Oakland Circuit Court
SUBURBAN MOBILITY AUTHORITY FOR                                      LC No. 2013-135379-AV
REGIONAL TRANSPORT (SMART),

               Defendant-Appellee,

and

ROY SHECTER & VOCHT PC,

               Intervener-Appellee.


Before: BECKERING, P.J., and CAVANAGH and GADOLA, JJ.

PER CURIAM.

        In this action regarding attorney fees, plaintiff Mazyn Barash appeals as of right the trial
court’s April 30, 2015 order requiring that the law firm Roy, Shecter & Vocht, P.C., (RSV) be
paid $83,925, plus statutory interest, out of a check paid by the Suburban Mobility Authority for
Regional Transport (SMART) in satisfaction of an award based on a discrimination claim by
Barash against SMART. We affirm.

        This case concerns a dispute regarding payment of attorney fees that is connected to, but
distinct from, a discrimination claim brought by Barash and the Michigan Department of Civil
Rights (MDCR) against SMART. RSV represented Barash for some time in the department’s
administrative proceedings; however, after RSV ceased representation, Barash hired Akeel &
Valentine (AV) to represent him. Barash obtained a favorable judgment from the Michigan Civil
Rights Commission, and in case number 2012-127264-AV, the trial court affirmed the

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commission’s May 25, 2012 final order. The order stated that SMART must cease its
discrimination, pay Barash certain amounts of damages, pay certain amounts of attorney fees and
costs to RSV and AV, and pay statutory interest on all amounts. In the portion relevant to this
appeal, the order specifically directed that SMART “shall remit $83,925.00 to the Schechter Law
Firm [RSV] for attorney fees.”

        In case number 2013-135379-AV, the case now before this Court on appeal, Barash and
the MDCR sought entry of a decree ordering SMART to pay the damages and fees identified in
the order. After exhausting its appellate remedies, SMART issued a tri-party check to Barash,
AV, and RSV. However, after RSV endorsed the check, Barash and AV refused to pay RSV the
$83,925 plus interest that it was allocated in the May 25, 2012 order, claiming that there was a
contract between RSV and AV that entitled RSV to only 30% of the attorney fees paid by
SMART. On March 25, 2015, RSV moved to intervene and moved the trial court to order
enforcement of the May 25, 2012 judgment by ordering Barash or AV to pay it the amounts
stated in the May 25, 2012 order. After hearings held on April 1, 2015 and April 29, 2015, the
trial court granted RSV’s motion to enforce judgment and ordered that RSV be paid $83,925 plus
statutory interest out of the award paid by SMART, resulting in entry of the April 30, 2015 order
at issue.

      Barash’s first claim on appeal is that the trial court erred by ordering that RSV be paid
$83,925 plus statutory interest because there was a contract between RSV and AV that entitled
RSV to only 30% of the total attorney fees paid by SMART. We disagree.

        “The existence and interpretation of a contract are questions of law reviewed de novo.”
Kloian v Domino’s Pizza LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). Similarly, the
interpretation of a court order involves questions of law that are reviewed de novo. Silberstein v
Pro-Golf of America, Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008).

       According to Barash, a contract was formed when, after several emails were exchanged
between the law firms, an attorney from AV sent an email on January 25, 2011 to an attorney
from RSV that in relevant part stated “[f]or the civil rights claim, your firm would be entitled to
30% of fees awarded from the Commission,” and the attorney for RSV replied, in relevant part in
a January 28, 2011 email, “Yes.” On this basis, Barash argues that the $83,925 in attorney fees
awarded to RSV and the $37,325.75 in attorney fees awarded AV should be summed, after
which RSV should receive 30% of the total and AV should receive 70% of the total.

        Although the parties do not raise the issue, we note that Barash lacks standing under
Michigan law to adjudicate this issue because he is not a proper party to attempt to enforce an
alleged fee-splitting agreement between AV and RSV. Lansing Schools Educ Ass’n v Lansing
Bd of Educ, 487 Mich 349, 355; 792 NW2d 686 (2010) (“The standing inquiry focuses on
whether a litigant is a proper party to request adjudication of a particular issue and not whether
the issue itself is justiciable.”) (quotation marks and citation omitted). Under MCR 2.201(B), an
action “must be prosecuted in the name of the real party in interest.” The real party in interest
rule “is essentially a prudential limitation on a litigant’s ability to raise the legal rights of
another.” In re Beatrice Rottenberg Living Trust, 300 Mich App 339, 355; 833 NW2d 384
(2013). Although Barash purportedly brought this appeal against SMART to challenge the trial
court’s order enforcing Barash’s judgment against SMART, neither Barash nor SMART have an

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interest in the subject or outcome of the appeal—the only question Barash is seeking to have
decided is how the attorney fees should be divided between RSV and AV based on the terms of
their fee-splitting agreement. Thus, it appears that Barash is bringing the appeal on behalf of AV
exclusively for AV’s interests. Accordingly, it is improper for Barash to attempt to enforce
AV’s alleged contract rights.

        Similarly, because Barash is not a party to the alleged contract, he would only be able to
enforce the contract if he were a third-party beneficiary to the contract. See MCL 600.1405.1
“This rule reflects the Legislature’s intent to ensure that contracting parties are clearly aware that
the scope of their contractual undertakings encompasses a third party, directly referred to in the
contract, before the third party is able to enforce the contract.” Shay v Aldrich, 487 Mich 648,
664-665; 790 NW2d 629 (2010) (quotation marks and citation omitted). Barash was not a third-
party beneficiary of the alleged contract between AV and RSV regarding how they would split
any statutory attorney fees awarded in the proceeding, as he received no benefit from the contract
and was not referred to in the contract. Nonetheless, Barash attempts to use enforcement of that
contract as a reason RSV should not be paid according to the May 25, 2012 order. Although
Barash’s claim on appeal supposedly deals with the trial court’s order regarding the award
SMART was required to pay, Barash’s claim appears to be a thinly veiled attempt to act on AV’s
behalf to enforce its alleged contract against RSV.

        Moreover, the parties do not dispute that the May 25, 2012 order was a final order for
which avenues of possible appellate relief were exhausted. In general, “judgments are final and
binding and, absent reasons such as fraud, preclude relitigation of matters already decided and
reduced to judgments.” Staple v Staple, 241 Mich App 562, 572; 616 NW2d 219 (2000). The
existence or nonexistence of a fee-sharing contract between AV and RSV has absolutely no
bearing on the final order directing SMART to pay certain amounts of money to Barash, AV, and
RSV. Neither AV nor RSV were parties to the case that resulted in the award of attorney fees to
them from SMART, and neither firm had any obligation under the May 25, 2012 order. The
order directed SMART to take several actions, including paying specific amounts of money to
Barash, AV, and RSV. Barash fails to explain how or why an alleged contract between AV and
RSV could affect the final and binding order of May 25, 2012, and this Court finds no reason to
conclude that it could. The trial court appears to have reached the same conclusion—when it
ordered Barash and AV to pay RSV, it did not refer to the alleged contract at all, but instead
indicated that affirmation of the May 25, 2012 order required payment to RSV of the amount
indicated in the order, notwithstanding any of Barash’s claims to the contrary. Therefore, we
conclude that the trial court did not err by ordering that RSV be paid $83,925 plus statutory
interest from the judgment paid by SMART, regardless of Barash’s attempt to enforce an alleged
contract between AV and RSV.



1
 “Any person for whose benefit a promise is made by way of contract, as hereinafter defined,
has the same right to enforce said promise that he would have had if the said promise had been
made directly to him as the promisee.” MCL 600.1405.




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        Barash also claims on appeal that the trial court erred in granting substantive relief to
RSV without first expressly granting RSV’s motion to intervene. Because Barash did not raise
this issue in the trial court until his motion for reconsideration of the trial court’s order directing
payment to RSV, he did not preserve the issue for appellate review. Vushaj v Farm Bureau Gen
Ins Co of Michigan, 284 Mich App 513, 519; 773 NW2d 758 (2009). Further, we find the claim
to be without merit.

       “[I]t is fundamental that a party may not create error in a lower court, and then claim on
appeal that the error requires reversal.” Clohset v No Name Corp (On Remand), 302 Mich App
550, 566; 840 NW2d 375 (2013). To do so “ ‘would permit the party to harbor error as an
appellate parachute.’ ” Id., quoting Dresselhouse v Chrysler Corp, 177 Mich App 470, 477; 442
NW2d 705 (1989). Barash did not contest RSV’s motion to intervene and did not raise the issue
of the trial court’s failure to rule on the motion to intervene until his motion to reconsider
brought after the trial court granted RSV’s motion to enforce the May 25, 2012 order. At a
hearing held on April 29, 2015, after RSV had filed its motion to intervene but the trial court had
not formally granted the motion, the trial court stated “what motions we have; a motion to
intervene by Ms. Sheeter? [sic]” In response, the attorney appearing on behalf of Barash, stated
“No, actually I think just to settle the order--.” Therefore, because counsel for Barash
represented to the trial court that no further action was necessary on RSV’s motion to intervene,
Barash cannot now claim that the trial court erred by failing to formally grant the motion.
Clohset, 302 Mich App at 566. To do so would improperly allow Barash to harbor error as an
appellate parachute. Id.

       Affirmed.



                                                               /s/ Jane M. Beckering
                                                               /s/ Mark J. Cavanagh
                                                               /s/ Michael F. Gadola




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