                         STATE OF MICHIGAN

                           COURT OF APPEALS



In re Estate of CHARLOTTE WETSMAN


STEPHEN SHEFMAN,                              UNPUBLISHED
                                              December 23, 2014
            Appellant,

v                                             No. 317081
                                              Oakland Probate Court
MILLER, CANFIELD, PADDOCK AND                 LC No. 2007-309955-DE
STONE, P.L.C.,

            Appellee,

and

THOMAS BRENNAN FRASER, Special
Fiduciary, JUDITH GAIL SILBERMAN, and
PETER SHEFMAN,

            Intervenors.


In re CHARLOTTE WETSMAN TRUST


STEPHEN ERIC SHEFMAN,

            Appellant,

v                                             No. 317085
                                              Oakland Probate Court
MILLER, CANFIELD, PADDOCK AND                 LC No. 2009-324688-TV
STONE, P.L.C.,

            Appellee,

and

PETER ELLIOTT SHEFMAN, JUDITH GAIL

                                        -1-
SILBERMAN, and THOMAS BRENNAN
FRASER,

               Intervenors.


Before: O’CONNELL, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

        During the administration of Charlotte Wetsman’s estate, her son/personal representative
amassed over $100,000 in attorney fees. The probate court determined that the son utilized these
legal services to improve his own position in squabbles with his siblings rather than to benefit the
estate. The court therefore denied the son’s and attorney’s request for payment from the estate,
and instead held the son personally liable. Counsel then sought to secure compensation from the
son, requesting an attorney charging lien over the son’s share of a separate trust created by
Wetsman before her death. The probate court granted counsel’s petition, imposed the lien, and
ordered the trustee to withhold the son’s share from distribution.

        We affirm the probate court’s determination that the son was personally liable for the
attorney’s services, as well as the attorney’s claimed rate and the total amount of fees awarded.
However, we reverse the probate court’s orders imposing an attorney charging lien against the
trust proceeds. Counsel’s services did not create that pool of funds, rendering a common-law
charging lien an inappropriate mechanism of recompense. As this disposition changes the
outcome of the proceedings, counsel is no longer the prevailing party and we must vacate the
probate court’s imposition of sanctions against the son personally. And we remand for further
proceedings consistent with this opinion.

                                       I. BACKGROUND

       Charlotte Wetsman had three children: Stephen Shefman, Peter Shefman, and Judith
Silberman. During her life, Wetsman drafted a will and named Stephen Shefman (Shefman) as
the personal representative of her estate. She also created an inter vivos trust. Upon her death,
according to trust documents, Shefman would become trustee. Following Wetsman’s death, her
children bitterly disputed the distribution of her property. An estate action was filed in 2007.
Shefman appeared not only as the personal representative but additionally as an attorney of
record in that action. Shefman also retained the services of Richard Siriani, a Miller Canfield
attorney.

       Peter challenged the validity of Wetsman’s will, claiming that Shefman unduly
influenced their mother. Attorney Andrew J. Broder of Payne Broder & Fossee represented
Shefman in the will validity challenge. See Payne Broder & Fossee, PC v Shefman, unpublished
opinion per curiam of the Court of Appeals, issued July 22, 2014 (Docket No. 312659).
Shefman, as the estate personal representative, countered with a slander of title action against
Peter, after which Peter was found liable. That action resulted in only nominal damages,
however.


                                                -2-
        In 2009, the probate court removed Shefman as personal representative of the estate,
finding that his actions were more for his benefit than for the good of the estate. The court
appointed Thomas Brennan Fraser as the successor personal representative. In 2009, the probate
court initiated supervision of the trust administration. The court later removed Shefman as
trustee and appointed Fraser to that post as well.

        In a complex prior consolidated appeal involving the estate, trust, and slander-of-title
actions, this Court affirmed various probate court orders challenged by Peter and Shefman.
Among the myriad issues previously raised, Shefman challenged the attorney fees allowed by the
probate court to cover his personally-supplied legal services in the estate action. This Court
affirmed the probate court’s decision to award less in fees than requested by Shefman in relation
to the first accounting period. In re Wetsman Estate, unpublished opinion per curiam of the
Court of Appeals, issued September 20, 2013 (Docket Nos. 292350, 292738, and 301356),
unpub op at 11 (Wetsman I), unpub op at 11. This Court also affirmed the probate court’s
decision to disallow any charge to the estate for services provided by Siriani in the first
accounting period on the ground that Siriani’s work was performed for Shefman individually.
Id. In the prior appeal, Shefman also challenged the probate court’s decision regarding allowable
attorney fees for his personal services during the period covered by his second and final account.
However, Shefman raised no challenge to the probate court’s decision to allow only $2,973 to be
charged to the estate for Siriani’s services during that timeframe. Id. at 4, 13.

        While the prior appeal was pending, Miller Canfield filed claims of interest in both the
trust and estate actions in connection with $111,440.76 of unpaid attorney fees and costs for
work rendered by Siriani for the period of January 2008 through February 2010. After Wetsman
I was issued, Miller Canfield filed a petition in the trust action to preclude successor trustee
Fraser from making any distributions to Shefman until he satisfied a charging lien for the
attorney fees and costs. Miller Canfield asserts that it also secured a charging lien in the estate
action but only minimal property remained available to satisfy this obligation.

        In January 2013, Miller Canfield sought summary disposition on its attorney-fee request.
The probate court conducted a hearing and granted the motion in part. Specifically, the court
found no genuine issue of material fact regarding the reasonableness of the Miller Canfield rate
or the hours of attorney work claimed. The court expressed that the only remaining issues for the
continued hearing were whether Shefman was personally liable for the remaining fees and, if so,
whether a lien could be imposed against his share of the trust proceeds to satisfy the attorney-fee
obligation. Following additional hearings on March 25 and May 3, the probate court found
Shefman personally liable for the attorney fees and ordered Fraser to withhold Shefman’s portion
of the trust proceeds to recompense Miller Canfield.

       Shefman appealed in both the trust and estate cases.

                                 II. STANDARDS OF REVIEW

        We review a probate court’s factual findings in a trust action and in relation to a motion
for attorney fees for clear error and its dispositional rulings for an abuse of discretion. In re
Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). A probate court abuses
its discretion when it “chooses an outcome outside the range of reasonable and principled

                                                -3-
outcomes.” Id. We review de novo underlying issues of statutory interpretation and other legal
issues. Id. We also review de novo challenges to a lower court’s subject matter jurisdiction.
Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494 Mich 46, 51; 832 NW2d 728 (2013).

        We review de novo a probate court’s grant of summary disposition. Ducharme v
Ducharme, 305 Mich App 1, 5; 850 NW2d 607 (2014). Summary disposition is appropriate
under MCR 2.116(C)(10) when, viewing the evidence in the light most favorable to the
nonmoving party, there remains no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468
(2003).

                              III. ATTORNEY CHARGING LIEN

        First and foremost, the probate court erred in entering an attorney charging lien against
Shefman’s share of the trust proceeds. The decision to impose an attorney’s lien is within the
trial court’s discretion. Polen v Melonakos, 222 Mich App 20, 24; 564 NW2d 467 (1997). Such
liens are not granted by statute, but are a common-law construct. The lien “is an equitable right
to have the fees and costs due for services secured out of the judgment or recovery in a particular
suit.” George v Sandor M Gelman, PC, 201 Mich App 474, 476; 506 NW2d 583 (1993).

        But to what funds may a charging lien attach? Not every pool of money possessed by a
client at the close of a legal matter amounts to a “judgment” or “recovery” secured by counsel.
Attorney charging liens “automatically attach to funds or a money judgment recovered through
the attorney’s services.” Id. at 477. They cannot attach, however, to real property over which an
attorney secures title or possession for the client. Id. at 478. Nor may they attach to the proceeds
from the sale of a house accomplished to comply with an Internal Revenue Service settlement.
See Dunn v Bennett, 303 Mich App 767, 769, 778; 846 NW2d 75 (2014).

        Here, Siriani’s work did not secure Shefman’s right to possess any trust proceeds. Siriani
allegedly represented Shefman in estate matters, although Miller Canfield asserts that the estate
was merged with the trust through a “pour over” provision. Shefman’s right to possess some
portion of the trust proceeds was not at issue even in the trust action; rather the manner of
administering the trust was challenged among the siblings. Accordingly, even if Siriani provided
representation in the trust case, Miller Canfield would not be entitled to a charging lien against
the trust proceeds because his legal efforts simply did not create or add to the total trust funds
available for distribution to the beneficiaries. We therefore reverse the probate court’s May 3,
2013 orders imposing an attorney charging lien and ordering Fraser to pay Miller Canfield’s
invoices from Shefman’s share of the trust proceeds.1




1
  Given our resolution of this issue, we need not consider Shefman’s additional claim that the
attorney charging lien violated the spendthrift provision in the Wetsman trust.


                                                -4-
                            IV. SUBJECT-MATTER JURISDICTION

        However, the probate court’s inability to allow an attorney charging lien against the trust
assets does not translate into a lack of authority to decide any issue relating to attorney fees.
Contrary to Shefman’s contentions, the probate court had the power to determine that Shefman
was individually liable for the Miller Canfield fees and to order him to recompense his attorney.

        Subject-matter jurisdiction refers to a court’s “power to hear and determine a cause or
matter.” Bowie v Arder, 441 Mich 23, 36; 490 NW2d 568 (1992) (quotation marks and citation
omitted). Subject matter jurisdiction “is the right of the court to exercise judicial power over that
class of cases; not the particular case before it, but rather the abstract power to try a case of the
kind or character of the one pending.” Joy v Two-Bit Corp, 287 Mich 244, 253; 283 NW 45
(1938) (quotation marks and citation omitted). Because subject matter jurisdiction “does not
depend on the truth or falsehood of the charge,” it must be gauged on the allegations raised at the
commencement of the action. Altman v Nelson, 197 Mich App 467, 472; 495 NW2d 826
(1992).2 If subject matter jurisdiction is lacking, the action is void “no matter what formalities
may have been taken by the trial court.” Jackson City Bank & Trust Co v Fredrick, 271 Mich
538, 544; 260 NW 908 (1935).

        “The probate court . . . is a court of limited jurisdiction, deriving all of its power from
statutes.” Manning v Amerman, 229 Mich App 608, 610-611; 582 NW2d 539 (1998). That
jurisdiction may not be expanded by court rule. In re Kasuba Estate, 401 Mich 560, 566; 258
NW2d 731 (1977); see also Const 1963, art VI, § 15 (“The jurisdiction, powers and duties of the
probate court and of the judges thereof shall be provided by law.”). In this matter, Shefman
conceded in his response to Miller Canfield’s motion that the probate court was permitted to
compel him to pay attorney fees under MCR 5.117(D). This court rule provides that “[a]n
attorney whose services are terminated retains the right to have compensation determined before
the proceeding is closed.” And the probate court relied upon this rule in considering Miller
Canfield’s request. As the probate court’s jurisdiction must be defined by statute, the court erred
to the extent that it looked only to the court rule as imbuing it with jurisdiction to consider Miller
Canfield’s claim.




2
  We note that this Court has distinguished Altman (along with various other cases) when subject
matter jurisdiction is questioned based on the amount in controversy. See Moody v Home
Owners Ins Co, 304 Mich App 415, 431-432; 849 NW2d 31 (2014), lv gtd ___ Mich ___; 853
NW2d 331 (2014). In Moody, this Court noted that subject matter jurisdiction based on the
amount in controversy “will most often be determined by reviewing the amount of damages or
injuries a party claims in his or her pleadings,” just as when considering whether the nature of
the claim falls within the court’s jurisdiction. Id. at 430. However, Moody continued, the
statutory amount-in-controversy jurisdictional provisions do not limit review to the point in time
when the complaint is filed. Rather, the phrase “amount in controversy” encompasses “the
amount the parties argue about, debate or controvert,” which may increase or decrease as the
proceedings and discovery progress. Id.


                                                 -5-
        Nonetheless, the probate court had statutory authority to consider the attorney-fee
dispute. Miller Canfield’s claim for fees for Siriani’s work did not originate with the request for
an attorney charging lien. Rather, it began with its request for fee recovery against the Wetsman
estate preceding Wetsman I. And it was within the probate court’s power to decide that the work
performed by Siriani actually benefited not the estate, but Shefman personally.

        MCL 700.1302 governs the exclusive subject matter jurisdiction of probate courts and
MCL 700.1303 governs the court’s concurrent and equitable jurisdiction. Under MCL
700.1302(a), the probate court has exclusive legal and equitable jurisdiction over “[a] matter that
relates to the settlement of a deceased individual’s estate.” The payment of attorney fees
potentially related to the administration of the estate was certainly “[a] matter that relates to the
settlement” of an estate.

        Once the probate court determined that Shefman was the proper party from whom to
pursue payment, it had the authority to consider the propriety of securing that payment by
different methods. Under MCL 700.1302(b), the probate court’s exclusive jurisdiction also
includes “[a] proceeding that concerns the validity, internal affairs, or settlement of a trust; the
administration, distribution, modification, reformation, or termination of a trust; or the
declaration of rights that involve a trust, trustee, or trust beneficiary.” Upon request by an
interested person, the probate court may also instruct or direct a fiduciary concerning a matter
within its jurisdiction, MCL 700.1102(d), such as directing payment from trust assets. Pursuant
to MCL 700.1303(1)(a), the probate court has concurrent jurisdiction in regard to a decedent’s
estate or trust to take several actions, including the determination of a property right or interest.
Moreover, under the Revised Judicature Act, a probate court has “the same powers as the circuit
court to hear and determine any matter and make any proper orders to fully effectuate the probate
court’s jurisdiction and decisions.” MCL 600.847. That Miller Canfield requested and the
probate court selected an improper method to secure payment for Siriani’s work does not divest
the court of subject matter jurisdiction.

        Shefman complains that his fee dispute with Siriani is a personal matter in no way related
to the trust or estate proceedings. This view is simply inaccurate. Shefman signed a contract
asserting, inaccurately as it was later determined, that he was seeking legal services on behalf of
the Wetsman estate. He then amassed exorbitant legal bills, again improperly citing the estate as
the client. This lulled Siriani into believing that he would be paid by the estate. And Miller
Canfield was disappointed when it requested the expected payment for Siriani’s work and the
court considered the evidence and determined that the estate was not liable. That resolution
would have collateral estoppel effect in any private action by Miller Canfield against Shefman
for payment. The time for raising contract defenses was in the current fee dispute, and no new
claim could avoid Shefman’s liability.3



3
 Shefman also complains that Miller Canfield failed to file its petition for a charging lien in the
estate action, choosing to file only in the trust action. As we conclude that a charging lien was
not a proper method of enforcing the court’s determination that Shefman was personally liable,
we find this issue irrelevant. In any event, the estate and trust actions involved the same parties


                                                -6-
                       V. DISCOVERY AND SUMMARY DISPOSITION

        Shefman also challenges the probate court’s grant of summary disposition and the court’s
failure to allow discovery before considering the motion. First, we note that Shefman conceded
to the reasonableness of Siriani’s professional rate at the January 3 hearing: “I do not dispute the
rate that Mr. Siriani seeks to recover fees at.” He also agreed to the number of hours Siriani
alleged that he spent on this matter: “I believe, by virtue of attaching his statements to those
petitions, that the work was done, and that the fee that was charged . . . at a rate that I believed to
be reasonable. And so I’m not arguing that now.” Accordingly, Shefman waived any claim of
error in this regard. See Marshall Lasser, PC v George, 252 Mich App 104, 109; 651 NW2d 158
(2002).

       In regard to Shefman’s personal liability for attorney fees, we discern no discovery that
was prohibited but could have assisted Shefman’s defense. And the probate court correctly
found no question of fact on this issue.

         In challenging the probate court’s ultimate ruling, Shefman contends that the court was
prohibited from finding him liable as there was no contract between Shefman in his personal
capacity and Miller Canfield or Siriani. This Court has held that “‘[W]here the fiduciary was
partially to blame for bringing about unnecessary litigation, the fiduciary rather than the estate
should be responsible for the attorney’s fees.’” In re Nestorovski Estate, 283 Mich App 177,
204; 769 NW2d 720 (2009), quoting In re Valentino Estate, 128 Mich App 87, 95-96; 339
NW2d 698 (1983). This conclusion is founded on the language of MCL 700.3720, which
permits the personal representative of an estate to collect expenses from the estate incurred while
defending or prosecuting an action on the estate’s behalf “in good faith.” Nestorovski, 283 Mich
App at 203-204. Accordingly, pursuant to statute and caselaw, a personal representative who
enters a contract with an attorney in his or her role as personal representative may nonetheless be
found liable to recompense the attorney from his or her personal funds for actions not taken “in
good faith.” Shefman raises no challenge to the probate court’s determination that he
mismanaged the estate and brought actions for his own benefit rather than for the benefit of the
estate. Absent any other error, as discussed below, we affirm the probate court’s ultimate
summary disposition ruling on Shefman’s personal liability.

        As noted, Shefman complains that an error requiring reversal exists because the probate
court denied his right to discovery. MCR 5.131(A) provides that “[t]he general discovery rules
apply in probate proceedings.” Under MCR 5.213(B), discovery in a probate proceeding is
limited to matters raised in the petition pending before the probate court. Here, the probate court
did not totally foreclose discovery. Rather, the probate court ruled that if a “surprise” arose
during the hearing, then it would order discovery. Fresh discovery was not required at that point,
because such discovery had been conducted in relation to the attorney-fee dispute prior to the
issuance of Wetsman I. That discovery encompassed the attorney engagement letter and the
scope of Siriani’s work. The attorney-fee dispute had even been the subject of earlier evidentiary
hearings. Against this backdrop, the probate court determined that Shefman’s request to depose

before the same court and therefore all parties and judicial officers were on notice of the petition
as related to both actions.


                                                 -7-
Siriani in 2013 amounted to harassment. Under the circumstances, the probate court’s decision
to disallow further discovery without an adequate showing of need did not constitute an abuse of
discretion.

       The lack of additional discovery also did not render the summary disposition ruling
premature. Summary disposition is only premature when further discovery stands “a fair chance
of uncovering factual support for the opposing party’s position.” Neumann v State Farm Mut
Auto Ins Co, 180 Mich App 479, 485; 447 NW2d 786 (1989). “[A] party opposing a motion for
summary disposition because discovery is not complete must provide some independent
evidence that a factual dispute exists.” Mich Nat’l Bank v Metro Institutional Food Serv, Inc,
198 Mich App 236, 241; 497 NW2d 225 (1993). Siriani’s deposition is the only additional
discovery cited by Shefman on appeal in support of his claim that summary disposition was
premature. However, Siriani had already testified in the earlier attorney-fee dispute. He was
available and testified at the current evidentiary hearing. And the court indicated that if Siriani’s
testimony resulted in surprise, the court would allow additional discovery. Siriani’s testimony
evidently did not surprise Shefman as he raised no additional objection on any particular point
for which he asserted required additional discovery. On this record, it does not appear that
summary disposition was premature.

        Shefman also raises a challenge to the summary disposition ruling based on an alleged
lack of notice. Shefman contends that he “never received a copy of Appellee’s Motion for
Summary Disposition, Affidavit or Brief” in the estate case prior to the hearing. Shefman also
asserts that Miller Canfield failed to serve its charging lien pleading against him in the estate
case before filing its motion for summary disposition. Miller Canfield did serve all these
documents on Shefman in the trust case, however. The two proceedings involved the same
parties and were heard before the same probate court judge. The motions and petitions in both
the trust and estate cases would have been identical. Accordingly, we have no doubt that
Shefman was fully on notice in the estate case. We therefore affirm the probate court’s summary
disposition rulings.

                                         VI. SANCTIONS

       Finally, Shefman challenges the probate court’s order in the estate action imposing
sanctions against him personally in the amount of $20,731.80 to be paid to Miller Canfield.
When Shefman challenged Miller Canfield’s request for an attorney charging lien and insisted
upon an evidentiary hearing, the court stated:

              And let me warn you right now, Mr. Shefman, I’m going to seriously
       consider any request for sanctions against you for frivolous arguments. If it’s
       made, I’m going to consider it. . . .

               Because it appears to me that, based on my previous decisions regarding
       fees, including Mr. Siriani’s, and the fact that the Court of Appeals affirmed every
       single decision I made, citing the reasoning, okay, including my reasoning
       regarding who the services were provided to, okay, that your arguments might be
       considered frivolous.


                                                -8-
        At the conclusion of the three-day evidentiary hearing, Shefman actually asserted that
Miller Canfield’s action for attorney fees was “frivolous.” The court noted, “That’s in part the
reason for the sanction, that frivolous argument.” The court continued by admonishing Shefman
for challenging its jurisdiction “in a frivolous way,” by “seriously advanc[ing] a theory that Mr.
Siriani has no right to compensation from anyone[.]”4 In its written order, the court indicated
that the sanctions were imposed pursuant to MCR 2.114(E), MCR 2.114(F), and MCR
2.625(A)(2) to benefit Miller Canfield. The sanctions were actually awarded in the estate action
but were to be paid from Shefman’s share of the trust proceeds.

        MCR 2.114(B)(2)(b) provides that a party signing and filing a document must attest that
the statements within are true to the best of his or her knowledge. By affixing his or her
signature, the party certifies “to the best of his or her knowledge, information, and belief formed
after reasonable inquiry, the document is well grounded in fact and is warranted by existing law
or a good faith argument for the extension, modification, or reversal of existing law;” and “the
document is not interposed for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation.” MCR 2.114(D)(2)-(3). MCR 2.114(D) and
(E) permit the imposition of sanctions if these provisions are violated:

         (E) Sanctions for Violation. If a document is signed in violation of this rule, the
       court, on the motion of a party or on its own initiative, shall impose upon the
       person who signed it, a represented party, or both, an appropriate sanction, which
       may include an order to pay to the other party or parties the amount of the
       reasonable expenses incurred because of the filing of the document, including
       reasonable attorney fees. The court may not assess punitive damages.

         (F) Sanctions for Frivolous Claims and Defenses. In addition to sanctions under
       this rule, a party pleading a frivolous claim or defense is subject to costs as
       provided in MCR 2.625(A)(2). The court may not assess punitive damages.

MCR 2.625(A)(2), in turn, provides for the payment of a party’s costs as sanctions when an
action or defense is deemed frivolous. MCR 2.625 applies, however, only in favor of “the
prevailing party in an action.” MCR 2.625(A)(1).

       We review for clear error a probate court’s decision that an action or defense is frivolous
and therefore merits the imposition of sanctions. Ladd v Motor City Plastics Co, 303 Mich App
83, 103; 842 NW2d 388 (2013); Guerrero v Smith, 280 Mich App 647, 677-678; 761 NW2d 723
(2008). “A decision is clearly erroneous when, although there may be evidence to support it, we



4
  At a November 1, 2012 hearing on this matter, Shefman argued, “I simply point that fact out to
indicate that there are circumstances under which an attorney may render services . . . for which
he is not entitled to be paid.” The probate court was shocked and asked for clarification.
Shefman reiterated that there are situations in which an attorney is not entitled to compensation
from anyone. Shefman conceded, however, that Siriani had actually provided the work for
which he sought compensation.


                                                -9-
are left with a definite and firm conviction that a mistake has been made.” Guerrero, 280 Mich
App at 677.

       Here, we empathize with the probate court’s determination that Shefman’s challenges to
the imposition of attorney fees against him was frivolous. However, Miller Canfield sought
compensation through an attorney charging lien. As we have reversed the orders imposing an
attorney charging lien against Shefman’s share of the trust assets, Miller Canfield is no longer
technically a prevailing party as required under MCR 2.625. And the court made no real
findings under MCR 2.114, suggesting that its order was not truly based on that statute. On
remand, the probate court may find another route by which to order Shefman’s payment of
Miller Canfield’s fees. At that time, the probate court may reconsider the sanction issue. At this
time, we are constrained to vacate the order imposing sanctions and ordering their payment from
Shefman’s share of the trust proceeds.

       We affirm in part, reverse in part, vacate in part, and remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.

                                                            /s/ Peter D. O'Connell
                                                            /s/ Stephen L. Borrello
                                                            /s/ Elizabeth L. Gleicher




                                              -10-
