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 2007-2013 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® 2014 in the fields of Trusts and Estates as well as Litigation – Trusts & Estates (Copyright 2013 by Woodward/White, Inc., of SC). He has been included in the Best Lawyers listing since 2011. 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://www.kempklein.com/probate-summaries.php DT: March 4, 2014 RE: Rosa Parks’ Opinion STATE OF MICHIGAN COURT OF APPEALS BASEBALL: “Remembering Nick Etten” With all the champions the Yankees have had, and all the league leaders who wore the pinstripes, you never hear Nick Etten mentioned. Nick Etten played for the Yankees for three years – 1943, 1944 and 1945. True, these were war years but that’s when Prince Hal Newhouser made his name and, ultimately, entry into the Hall of Fame. In 1943, ‘44 & 5, Nick played in 154 games, in two of those seasons, and 152 games in the third season. He led the league in homeruns in 1944, as well as bases on balls. He finished the 1945 season with a .285 batting average when the league leader, Stuffy Stirnweiss, the Yankee’s second 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– baseman, only batted .309. Nick was third on that team behind Stirnweiss and King Kong Keller, who batted 301. Although Nick led the league in errors in 1943, with 17 he did have a fielding average of .989. Nick must have been good because he was acquired from the Phillies in 1943 in exchange for four players – Tom Padden, Errol Al Gersheauser, Ed Levy and Al Gettel and $10,000. Nick led the league in 1945 and RBIs with 111. Nick was second in the American League in 1944 with 269 times on base, and third in 1945 with 247 total bases. In 1945 there were a series of exhibition games played, in lieu of an All Star Game, and Nick was the first baseman. I hope his relatives enjoy this article. REVIEW OF CASE: Reference Files: Res Judicata Law of The Case Failure to Appeal Effective Partial Reversals Vexatious Appeals It is rather difficult to critique a case you handled yourself, and the Court of Appeals ruled in your favor on all counts. However, I will try. When we last left the Parks’ situation, the Court of Appeals had affirmed the Lower Court’s Decision to prevent the Rosa Parks Institute from having a share, because of a breach of confidentiality. The Supreme Court of Michigan reversed the Court of Appeals on this issue, reinstating the share. The Court of Appeals had also sustained accountings and fees and $120,000 Judgment and a $17,000 Judgment against Appellants. This was appealed to the Michigan Supreme Court which did not rule on this issue. Appellants, after the Supreme Court Decision, went back to the Probate Court to try to have every Order of Judge Burton set aside. In the meantime Judge Burton had written to the Supreme Court asking for clarification of their Opinion. The Supreme Court replied: “Despite the concerns of the probate court, that court’s prior rulings resolving past disagreements between the court and Elaine Steele, the Institute, and their counsel, are undisturbed by this Court’s December 29, 2011 Order, except insofar as they are inconsistent with this Court’s Order, and thus pose no obstacle to implementing Paragraph I of the Settlement Agreement. The prior decision of the Court of Appeals affirming the court’s 2007 decision to overrule the objections of Elaine Steele and the Institute to the fee requests of the fiduciaries then serving, and the renewal of their letters of authority, likewise poses no obstacle to implementation of this Court’s Order. Finally, this Court’s Order in no way hinders the probate court’s ability to address, on its own motion or the motion of any party, as appropriate, any matters other than those specifically addressed and disposed of in that Order, including those cited by the; court in its letter. [Chase v 2 STATE OF MICHIGAN COURT OF APPEALS Case –continued– Raymond & Rosa Parks Institute for Self-Dev., _ Mich __ 807 NW2d 306 (2012).]” In essence the Supreme Court said we only did one thing and that was to reinstate fiduciaries and a residuary clause. Despite this, Appellants tried to set every Probate Order aside, including the allowance of accountings and a $120,000 Judgment. (It was actually a $120,000 Judgment and a separate Judgment for approximately $17,000). When Appellants didn’t get their way, they moved to disqualify the Probate judge. This was denied by Judge Burton as well as Judge Mack. Superintending control was sought, to the Wayne County Circuit Court, and Judge Daniel Ryan refused it. At that time a conspiracy petition was brought against Appellees and Judge Burton alleging all sorts of nefarious action(s); none of which was true. Judge Burton threw this out. When Appellant found out that there was no rule covering appeal ‘as of right’ of such a matter, he started calling it a surcharge petition and obtained entry into the Court of Appeals. The Court of Appeals accepted the position of Appellees in each and every instance. Proper procedure was followed by the Lower Court and there was due process. Numerous cases were cited to that affect. The Court of Appeals said that “a conspiracy standing alone without the commission of the acts causing damage is not actionable. The foundation of a conspiracy is not the conspiracy itself.” The Court of Appeals said that the Lower Court had no subject matter jurisdiction over such a petition. The granting of the fees and the amount of the Judgment, already ruled upon and being res judicata, were not proper grounds for the conspiracy. The Court of Appeals cited Grievance Administrator v Lopatin, 462 Mich 235 (2000). The Court of Appeals ruled that due process does not include a full trial, but the right to be heard. In this case they were afforded a right to be heard. Since this a question of deciding jurisdiction there was no necessity for an evidentiary hearing. As to the disqualification of the Judge, Appellants argued Judge should have disqualified himself because he was made a Defendant. The Court of Appeals cited People v Bero, 168 Mich App 545 (1988) to show that you can’t sue a Judge in order to get him to disqualify himself. The mere filing of a Complaint is insufficient, “To hold otherwise would allow an attorney to Judge shop by filing even frivolous Grievances.” The Court of Appeals found that Appellants didn’t meet their burden of proof to show why the Judge should be disqualified. The Appellants only made blanket assertions and insinuations, and there was no record to support any conflict of interest or inappropriate conduct. As to the validity of the Judgment of the $120,000 (and $17,000), the Court of Appeals cited K &K Constr, Inc v DEQ, 267 Mich App 523 (2005) to the effect that you must strictly comply to the mandate of an Appellate Court. The Court of Appeals then went on to say that the only issue decided by the Supreme Court was the breach of confidentiality, and that the Supreme Court ordered the Lower Court to implement paragraph 1. “…the Order contained no additional instructions nor did they talk about the judgment in response to Judge Burton’s letter”. Also they 3 STATE OF MICHIGAN COURT OF APPEALS Case –continued– found that the Lower Court found that the $120,000 Judgment had nothing to do with the breach of the Confidentiality Order. The Court of Appeals also noted that the issue of, the so-called, exorbitant fees were not even appealed to the Supreme Court. The Supreme Court concluded in this area by saying that “only issues which were obstacles to implementing the Settlement Agreement were reversed”. Here, I think there is a more recent case that the Court of Appeals should have cited, and that is the case of Johnson v White, 430 Mich 47 where the Supreme Court emphatically stated: “Where a case is appealed to a higher court the law of the case announced in the higher court supersedes that set forth in the immediate court, but rulings of the intermediate court remain the law of the case is so far as they are not affected by the Opinion of the Higher Court reviewing the Lower Court’s determination.” Also, this case was cited 24 times and most recently by the Court of Appeals in Duncan v State of Michigan, 300 Mich App 176.