            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



ARLENE TRACEY MOORE formerly known as                                UNPUBLISHED
ARLENE TRACEY WRIGHT,                                                December 12, 2019

               Plaintiff-Appellee,

v                                                                    No. 345170; 345402
                                                                     Oakland Circuit Court
STEPHEN M. RYAN,                                                     LC No. 2018-164743-CH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

        In Docket No. 345170, defendant appeals as of right an opinion and order granting
summary disposition to plaintiff entered August 3, 2018, in this action for quiet title. In Docket
No. 345402, defendant appeals as of right a second opinion and order granting plaintiff summary
disposition1 entered September 5, 2018. We affirm, but we remand for further proceedings.

       Defendant represented plaintiff in a divorce proceeding from 2000 until 2001. On
October 10, 2001, the divorce court entered an amended consent judgment of divorce. Plaintiff
was awarded a house located in Rochester Hills in the judgment of divorce. The judgment of
divorce contains a provision concerning attorney’s fees, which states:
       IT IS FURTHER ORDERED AND ADJUDGED that each party is to pay their
       respective attorneys’ fees. Symantha Heath is awarded a lien for all of her
       attorney fees on all assets awarded to the defendant until she is fully paid.




1
  The trial court entered a second opinion and order because the first opinion and order could not
be recorded with the register of deeds as it lacked a legal description of the real property at issue
in this case. Even though there are two separate opinions and orders, the issue on appeal is the
same in both cases.



                                                 -1-
       Stephen M. Ryan is awarded a lien for all of his attorney fees on all assets
       awarded to the plaintiff until he is fully paid.

On or about October 23, 2001, defendant caused a lien to be recorded against plaintiff’s
Rochester Hills house. Plaintiff discovered the lien in 2017 when she tried to sell the house.

       Upon discovering the lien, plaintiff asked defendant to remove the lien. Defendant
refused and plaintiff filed this action for quiet title. Eventually, plaintiff moved for, and was
granted, summary disposition. Defendant now appeals.

        On appeal, defendant argues that the trial court erred when it granted plaintiff summary
disposition because defendant’s lien on plaintiff’s real property was a valid statutory judicial lien
rather than an improper attorney’s charging lien. We disagree.

        Although the trial court referenced both MCR 2.116(C)(9) and (C)(10) when granting
plaintiff’s motion for summary disposition, it considered the consent judgment of divorce which
was not part of the pleadings. Thus, we consider the motion as having been granted under MCR
2.116(C)(10). See Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d
519 (2012). We review de novo a trial court’s decision to grant a motion for summary
disposition. Lakeview Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d
712 (2010). A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s
claim and should be granted if, after consideration of the evidence submitted by the parties in the
light most favorable to the nonmoving party, no genuine issue regarding any material fact exists.
Id. If reasonable minds could differ on an issue, a genuine issue of material fact exists. Allison v
AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

       This case is analogous to Souden v Souden, 303 Mich App 406; 844 NW2d 151 (2013).
In Souden, an attorney fees provision was included in a judgment of divorce. Id. at 409. The
provision stated that the attorneys who represented the divorcing parties
       shall retain a lien on his/her client’s share of the marital assets to insure payment
       of the attorney fees. Should either party fail to pay his/her attorney, the attorney
       shall be entitled to proceed by virtue of the Judgment of Divorce, as a Judgment
       Creditor, to collect said sums with such remedies as are available to a Judgment
       Creditor in the State of Michigan. [Id. at 408-409.]

This Court addressed whether this provision gave the trial court power to “attach an attorney’s
charging lien to plaintiff’s real property.” Id. at 420.

        Relying on George v Sandor M Gelman, PC, 201 Mich App 474; 506 NW2d 583 (1993),
the Souden Court explained that “no attorney’s charging lien may be imposed on a client’s real
estate, even if title to the real estate was established or recovered by the attorney’s efforts, unless
‘(1) the parties have an express agreement providing for a lien, (2) the attorney obtains a
judgment for the fees and follows the proper procedure for enforcing a judgment, or (3) special
equitable circumstances exist to warrant imposition of a lien.’ ” Souden, 303 Mich App at 421,
quoting George, 201 Mich App at 478. The Souden Court then noted that the express agreement
contained in the stipulated divorce judgment “does not provide that the lien will be paid out of

                                                 -2-
real property, but only that each attorney retains ‘a lien on his/her client’s share of the marital
assets . . . .’ ” Souden, 303 Mich App at 421. The Souden Court determined that “[t]his does not
constitute an express agreement that the lien may attach to real property.” Id. This was because
even if the stipulated divorce judgment constituted “ ‘an express agreement providing for a lien,’
” it did not constitute an express written contract “ ‘providing for such a lien.’ ” Id., quoting
George, 201 Mich App at 478.

        The Souden Court then turned to the second prong under George, whether the attorney
obtained a judgment for fees and followed the proper procedure for enforcing the judgment.
Souden, 303 Mich App at 421-422. The Court noted that the attorney in Souden obtained a
judgment, but that he had “not attempted to execute on that judgment or determined that
plaintiff’s personalty is insufficient to satisfy the amount.” Id. at 422. Accordingly, the Souden
Court concluded
       to the extent that the order of the trial court can be interpreted as attaching a lien
       to the real property of plaintiff, such a lien would be invalid under the
       circumstances as they currently exist. On remand, the trial court should be
       cognizant that, absent [the attorney] following the proper procedures to collect on
       a judgment, his charging lien may not attach to plaintiff’s real property. [Id.]

        In this case, as in Souden, the express agreement is contained in the consent judgment of
divorce and creates a “lien for all of [defendant’s] attorney fees on all assets awarded to the
plaintiff until he is fully paid.” The agreement does not provide that the lien will be paid out of
real property. Accordingly, it “does not constitute an express agreement that the lien may attach
to real property.” Id. at 421. Thus, the consent divorce judgment is not an express agreement
providing for such a lien on plaintiff’s Rochester Hills house.

       Furthermore, “in order to proceed against a debtor’s real property under the second prong
of George’s analysis, a creditor must obtain a judgment and execute it against the debtor’s
property” after first “ ‘attempting to execute against the debtor’s personalty and determining that
the personal property is insufficient to meet the judgment amount.’ ” Id., quoting George, 201
Mich App at 477. Defendant has not obtained a judgment or followed the process for executing
a judgment under MCL 600.6004, and thus, fails to satisfy the second prong of the George
analysis. Therefore, defendant’s lien on plaintiff’s Rochester Hills house is invalid.

        Defendant argues that George is inapplicable to this case because the lien at issue here is
a “statutory judicial lien”2 rather than an attorney’s charging lien because the lien was created by
a judgment of divorce. This argument cannot survive this Court’s analysis in Souden. In
Souden, the lien was created by a judgment of divorce, yet this Court considered the lien to be a
charging lien subject to a George analysis. Defendant does not address Souden in his brief on
appeal and, therefore, does not argue that Souden was wrongly decided or somehow
distinguishable from this case. Furthermore, the lien at issue here is not a lien on a specific piece


2
 Such a lien is permissible under MCL 552.13(1). See Tyrrell v Tyrrell, 107 Mich App 435,
438-439; 309 NW2d 632 (1981).


                                                -3-
of real property and also fails to state how much was owed in attorney’s fees. See Wolter v
Wolter, 332 Mich 229, 236; 50 NW2d 771 (1952) (“An attorney fee of $300 shall be paid by
defendant within 30 days from the date hereof the plaintiff’s counsel; and unless paid before
decree is entered, this item may be decreed to be a lien on the VanDyke avenue property.”).
Therefore, defendant’s argument that his lien is a “statutory judicial lien” rather than an
attorney’s charging lien lacks merit.

        Affirmed. However, we remand to the trial court for any further proceedings the trial
court deems proper to resolve any remaining cloud upon plaintiff’s title caused by defendant,
including defendant’s notice of lis pendens recently disclosed to this Court. We do not retain
jurisdiction. Plaintiff, being the prevailing party, may tax costs. MCR 7.219(A).



                                                         /s/ Amy Ronayne Krause
                                                         /s/ Mark J. Cavanagh
                                                         /s/ Douglas B. Shapiro




                                             -4-
