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STATE OF MICHIGAN COURT OF APPEALS

BETHANY LUTHERAN CHURCH a/k/a NORTHPORT LUTHERAN CHURCH, Plaintiff-Appellee, v ALBERT PORTER and MARIE PORTER, Individually and Former Trustees of the JOHN W. SWENSON TRUST; NORTHWESTERN SAVINGS BANK, Successor Trustee; and CLINTON N. SWENSON, Defendants-Appellees, and ALBERT PORTER, BRIAN PORTER, DOUG PORTER, GREG PORTER, JEFFREY PORTER and JEROME PORTER, Intervening Defendants-Appellants.

UNPUBLISHED September 28, 2010

No. 291742 Leelanau Probate Court LC No. 06-010776-CZ

BETHANY LUTHERAN CHURCH a/k/a NORTHPORT LUTHERAN CHURCH, Plaintiff-Appellee, v ALBERT PORTER and MARIE PORTER, Individually and Former Trustees of the JOHN W. SWENSON TRUST, Defendants-Appellants, and No. 291762 Leelanau Circuit Court LC No. 06-010776-CZ

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NORTHWESTERN SAVINGS BANK, Successor Trustee, and CLINTON N. SWENSON, Defendants-Appellees, and ALBERT PORTER, Intervening Defendant-Appellee, and BRIAN PORTER, DOUG PORTER, GREG PORTER, JEFFREY PORTER and JEROME PORTER, Intervening Defendants.

Before: MURPHY, C.J., and HOEKSTRA and STEPHENS, JJ. PER CURIAM. These consolidated appeals involve challenges to the trial court's order enforcing a settlement agreement between the parties and denying a motion to intervene, as well as the trial court's subsequent denial of a motion to set aside the settlement agreement under a theory of frustration of purpose or impossibility. We affirm in part and reverse in part. This case involves a dispute related to the John W. Swenson trust. The trust was originally created in 1986, was subsequently amended in 1991, and then amended for a final time in 1994. Each version of the trust contained different instructions regarding final disbursement of the trust assets. The grantor passed away on August 9, 1997, rendering the provisions of the trust irrevocable. Under the original provisions of the trust, the entire amount remaining in the trust was to be distributed to Mildred E. Swenson (hereinafter Mildred) upon the death of the grantor if she was then surviving. If Mildred did not survive the death of the grantor, the entire amount remaining in the trust was to be held for the benefit of Clinton N. Swenson1 (hereinafter Clinton) during his lifetime. Upon the death of Clinton, the remaining trust assets were to be disposed of

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Clinton passed away while this appeal was pending.

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by dividing and distributing 50% of the remaining assets to the then-surviving grandchildren of Wesley G. Holton and distributing the balance to plaintiff. The first amendment to the trust also called for the entire amount remaining in the trust to be distributed to Mildred upon the death of the grantor, if she was then surviving, or alternatively held for the benefit of Clinton during his lifetime. However, under this version of the trust, plaintiff was to receive the entire trust assets remaining upon the death of Clinton. The second, and final, amendment of the trust eliminated any mention of Mildred, who had predeceased the grantor, and ordered that the trust assets be held for the benefit of Clinton during his lifetime upon the death of the grantor. Then, upon the death of Clinton, or in the event that he predeceased the grantor, the entire remaining trust assets were to be distributed to "Albert Porter and Marie Porter, husband and wife or to the survivor thereof."2 The second amendment of the trust also included the following provision: "In the event neither Albert Porter or Marie Porter shall survive me then to their issue by right of representation." Plaintiff eventually filed suit challenging the validity of the second amendment to the trust agreement. On the day the matter was scheduled for trial, the parties engaged in lengthy settlement discussions and reached an agreement. Under the terms of the settlement, which were placed on the record, defendant parents would remain beneficiaries of the trust, but would execute an irrevocable assignment of their beneficial interest to the Leelanau Township Foundation (foundation) for the benefit of the Leelanau Commission on Aging, which would result in any funds remaining in the trust upon Clinton's death being immediately passed directly to the foundation. The settlement agreement called for an amendment to the Trust to facilitate the above-described irrevocable assignment. The recitation of the agreement on the record also included reference to defendant sons. Specifically, a statement was made that the settlement was contingent on the six Porter sons signing waivers and consents to the proposed settlement terms. Three of the sons were present at the hearing and indicated their assent to the agreement. Later, the sons as a group indicated that they were not in agreement with the proposed settlement. Thus, waivers and consents were not procured from each and every one of the defendant sons. Defendant sons moved to intervene and filed a notice of non-settlement. The remaining parties filed motions advancing their positions relative to defendant sons' attempt to intervene and set aside the settlement agreement. Defendant parents and sons all argued that the settlement agreement was unenforceable because a condition precedent, i.e., the execution of waivers and consents by defendant sons, failed to occur. Following a hearing, the trial court denied defendant sons' petition to intervene and ordered the enforcement of the settlement agreement. Defendant parents appealed, challenging the trial court's decision to enforce the settlement agreement and deny defendant sons' motion to intervene. Defendant sons filed a separate appeal raising the same issues. The two cases were administratively consolidated by

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For ease of reference, we refer to defendants Albert and Marie Porter collectively as "defendant parents" and refer to their six intervening sons collectively as "defendant sons."

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order of this Court. See Bethany Lutheran Church v Porter, et al, unpublished order of the Court of Appeals, entered May 18, 2009 (Docket Nos. 291742 and 291762). In the interim, defendant sons, joined by defendant parents, moved for remand, asserting that the theories of frustration of purpose and impossibility precluded enforcement of the settlement agreement. This Court granted the motion for remand "to address impossibility and frustration of purpose relating to the purported settlement agreement." See Bethany Lutheran Church v Porter, et al, unpublished order of the Court of Appeals, entered November 23, 2009 (Docket Nos. 291742 and 291762). Following a hearing, the trial court denied the motion, finding that the settlement agreement was not frustrated and/or rendered impossible or impracticable to perform under Michigan law. Defendants now challenge the court's order denying defendant sons' motion to intervene, the order refusing to set aside the settlement agreement, and the finding that the agreement should not be set aside due to frustration of purpose or impossibility. We first address the claim that the trial court erred in denying defendant sons' motion to intervene. This issue was preserved for review through the motion to intervene and the subsequent denial of that motion. Detroit Leasing Co v Detroit, 269 Mich App 233, 237; 713 NW2d 269 (2005). This Court reviews a decision to deny a motion to intervene for an abuse of discretion. Vestevich v West Bloomfield Twp, 245 Mich App 759, 761; 630 NW2d 646 (2001). "An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes." Radeljak v DaimlerChrysler Corp, 475 Mich 598, 603; 719 NW2d 40 (2006). Motions to intervene are governed by MCR 2.209, which provides a right of intervention, in pertinent part, where a petitioner "claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." MCR 2.209(A)(3). The court rule also provides for permissive intervention when "an applicant's claim or defense and the main action have a question of law or fact in common." MCR 2.209(B)(2). However, motions to intervene must be timely, whether intervention is sought by right or by permission, and failure to timely request intervention is a proper ground to deny a motion for intervention. MCR 2.209 ("On timely application . . . ."); Davenport v City of Grosse Point Farms Bd of Zoning Appeals, 210 Mich App 400, 408; 534 NW2d 143 (1995). In the instant case, the trial court denied defendant sons' motion to intervene after determining that defendant sons did not have an interest in the trust or its assets, and it also concluded that the motion was untimely. On appeal, defendant sons fail to address the trial court's ruling that the motion to intervene was untimely, and instead limit their argument to the issue of whether they had an interest in the trust. If a party fails to dispute a basis of the trial court's ruling, this Court need not consider granting the relief sought. Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145 (2004). In addition, the death of Clinton during the pendency of this appeal has effectively rendered the argument of defendant sons moot and unavailing. The thrust of defendant sons' argument on appeal in support of their position that they have an interest in the trust sufficient to require intervention is found in the following passages in their brief: -4-

Under EPIC, in the event Albert and Marie Porter predecease Clinton N. Swenson, the anti-lapse provisions of MCL 700.2714 apply, creating a substitute gift in [defendant sons]. The RPC did not have any similar language. Absent a contrary intent in the Trust

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