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Basic Template Every month I summarize the most important probate cases in Michigan. Now I publish my summaries as a service to colleagues and friends. I hope you find these summaries useful and I am always interested in hearing thoughts and opinions on these cases. PROBATE LAW CASE SUMMARY BY: Alan A. May Alan May is a shareholder who is sought after for his experience in guardianships, conservatorships, trusts, wills, forensic probate issues and probate. He has written, published and lectured extensively on these topics. He was selected for inclusion in the 2007-2017, 2019 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and has been called by courts as an expert witness on issues of fees and by both plaintiffs and defendants as an expert witness in the area of probate and trust law. Mr. May maintains an “AV” peer review rating with Martindale-Hubbell Law Directory, the highest peer review rating for attorneys and he is listed in the area of Probate Law among Martindale-Hubbell’s Preeminent Lawyers. He has also been selected by his peers for inclusion in The Best Lawyers in America® 2020 in the fields of Trusts and Estates as well as Litigation – Trusts & Estates (Copyright 2018 by Woodward/White, Inc., of SC). He has been included in the Best Lawyers listing since 2011. Additionally, Mr. May was selected by a vote of his peers to be included in DBusiness magazine’s list of 2017 Top Lawyers in the practice area of Trusts and Estates. Kemp Klein is a member of LEGUS a global network of prominent law firms. He is a member of the Society of American Baseball Research (SABR). For those interested in viewing previous Probate Law Case Summaries, go online to: http://kkue.com/resources/probate-law-case-summaries/. He is the published author of “Article XII: A Political Thriller” and “Sons of Adam,” an International Terror Mystery. DT: June 11, 2020 RE: In re Guardianship of Griffin STATE OF MICHIGAN COURT OF APPEALS “Alan, you cannot write about baseball all your life” - Mrs. Pollinger - 12th Grade English Comp - Mumford High - 1959 201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com STATE OF MICHIGAN COURT OF APPEALS Case –continued– BASEBALL -THE BIG INNING For this memory, we go back in time to September 23, 1908. The scene is the Polo Grounds on Coogan’s Bluff in New York. The New York Giants and their Hall of Fame pitcher, Christy Mathewson, are facing last year’s World Champions, the Chicago Cubs. The Cubby’s boast the infield trio of “Tinkers to Evers to Chance”. On this date, the Cubs and Giants are tied for first place, with Matty hoping to stop the Cubs from achieving a trifecta of World Series appearances. We are on the bottom of the ninth inning, and the score is tied 1 to 1. Clue, there are only two umpires officiating at this game, and obviously don’t see as much as six umpires that are usually at a World Series. Seymour leads off by grounding out Evers to Chance. Art Devlin singles and the fans start to get excited. McCormick grounds to Evers and Devlin is forced. Moose McCormick is safe at first on a fielder’s choice. Fred Merkle, the youngest player in the National League, comes to the plate. This replacement first baseman has destiny imprinted on his dirty jersey and is about to live infamy. Merkle singles to right and McCormick stops at third. Bridwell steps into the batter’s box. Two outs, runners at the corners. The fans are loud and hopeful. Jack Pfiester winds and delivers. Bridwell hammers the ball through the box. McCormick scores from third. The ecstatic fans storm the field. The Giant’s win, right? No, they didn’t. Solly Hoffman, the center fielder, throws the ball toward Johnny Evers. Merkle trots off the fan covered field shaking hands as he goes. He never gets to second base, and he thinks, as a rookie, he doesn’t have to go to second base because McCormick has scored. Here’s the catch. The rules say that a run is not counted on a play in which the third out is made. The first base coach, Joe McGinnity catches the throw intended for Evers from Hoffman, and in his excitement, hurls the ball into the stands. The rules say that the ball becomes a dead ball, and the Giant’s would win. But the umpires don’t see the ball thrown into the stands because there are only two of them, and they are caught in the melee. Somehow, “a” baseball materializes in Johnny Evers hands. He touches second base forcing out Merkle with the mystery ball, and according to the rule, Merkle was out at second. -2- STATE OF MICHIGAN COURT OF APPEALS Case –continued– The game is ruled a tie, and in a makeup game, the Cubby’s win going on to beat the Tigers in the World Series. All this is due to Fred Merkle’s mistake in not running to second base, which, forever after, would become known Merkle’s “boner”. -3- STATE OF MICHIGAN COURT OF APPEALS Case –continued– Caveat: MCR 2.119, MCR 7.212 and 7.215 take effect May 1, 2016 on propriety of citing unpublished cases REVIEW OF CASE: RE: In re Guardianship of Griffin • Role of Appointed Counsel in Guardianship Proceedings • Jurisdiction of the Court Adult Protective Services petitioned for the appointment of a Guardian for the Ward. A Guardian Ad Litem was appointed on learning of the Ward’s objections to the petition, informed the Court, which appropriately appointed an attorney. The attorney is now the Appellee who represented the Ward. Appellant objected to the petition and sought his own appointment. The Ward retained private counsel to represent her at the hearing. At the lower Court hearing, the Court dismissed the Adult Protective Services petition and appointed Appellant and another as Co-Guardians. The lower Court directed that Appellee remain as co-counsel and then directed the estate to pay that co-counsel, refusing to entertain a plea of indigency. The Court of Appeals reversed and remanded saying: 1. The Court had no jurisdiction to continue appointed counsel after private counsel was retained. Therefore, the direction to pay counsel was an error of law; 2. The estate “could” be responsible for a reasonable fee for services rendered prior to private counsel’s retention, BUT; 3. The lower Court abused its discretion in not providing a hearing to determine indigency and must do so on remand. Although, I have never seen this fact situation, I have often seen many Probate Courts who have appointed Guardian Ad Litems continue their appointment even though the alleged Ward or minor has private counsel. The same theories, in this reviewer’s opinion, found in this case should apply. What do you think? -4- 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 In re Guardianship of WINNIE E. GRIFFIN. TODD GRIFFIN, Guardian of WINNIE E. UNPUBLISHED GRIFFIN, LIP, May 21, 2020 Petitioner-Appellant, and SHAWN GRIFFIN, Co-Guardian of WINNIE E. GRIFFIN, LIP, Other Party v No. 348544 Oakland Probate Court TIFFANY PITTS and LISA ORLANDO, LC No. 2018-383435-GA Appellees. Before: BECKERING, P.J., and FORT HOOD and SHAPIRO, JJ. PER CURIAM. Petitioner Todd Griffin appeals from an order requiring payment of court-appointed attorney fees. We reverse and remand for further proceedings consistent with this opinion. I. This case arises from an Adult Protective Services (APS) petition for guardianship of Winnie E. Griffin (“Griffin”). Griffin lives with her son, Todd Griffin, and his wife. APS’s petition filed in June 2018 claimed that Griffin has dementia, was being left unsupervised for several hours and was not taking her medications as prescribed. The petition nominated a professional guardian. The probate court appointed a guardian ad litem for Griffin, and the guardian ad litem later reported that the Griffin was contesting the petition and objected to the -1- appointment of the nominated guardian. In July 2018, Todd filed an objection to APS’s petition and a competing petition nominating himself as guardian. Griffin signed the petition, requesting that Todd be appointed guardian should the court determine she required one. After a hearing on July 25, 2018, the probate court entered an order appointing Lisa Orlando as Griffin’s attorney and released the guardian ad litem. A contested guardianship hearing was held on November 19, 2018. Because APS was not represented by counsel, the probate court dismissed its petition and proceeded solely on Todd’s petition. Griffin had retained counsel, Dorothy Dean, for the hearing. The probate court decided that Dean would be Griffin’s “main counsel” and that Orlando would stay on as co-counsel. At the close of testimony, the probate court found that Griffin was a legally incapacitated person and required a guardian. The probate court appointed Todd and his brother Shawn as co-guardians. In the order of guardianship, the court released Orlando as appointed counsel and directed her to “bill the estate.” At the March 21, 2019 review hearing, Todd objected to paying Orlando’s attorney fees. He asserted, in part, that his mother lacked funds to pay Orlando. The probate court rejected Todd’s objection to paying Orlando’s fees and entered an order requiring payment within 48 hours. Todd immediately filed a motion for reconsideration, arguing that payment of the $1,050 bill Griffin received from Orlando would deplete Griffin’s estate.
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