Preview:

STATE OF MICHIGAN COURT OF APPEALS

In re Estate of JAMES RICHARD MOORE.

JULIE ANN SCHAFFER, Personal Representative of the Estate of JAMES RICHARD MOORE, Appellee/Cross-Appellant, V JAMES PATRICK MOORE, Appellant/Cross-Appellee.

UNPUBLISHED December 22, 2011

No. 298100 Oakland Probate Court LC No. 2001-278056-DA

Before: WILDER, P.J., and CAVANAGH and DONOFRIO, JJ. PER CURIAM. Appellant James Patrick Moore ("Moore") filed a petition in probate alleging that appellee Julie Ann Schaffer (Schaffer"), personal representative of the estate of James Richard Moore, deceased, fraudulently misinformed him regarding his legal obligation to repay a mortgage loan that was secured by a mortgage on real property that the decedent and Moore owned as joint tenants with rights of survivorship. The probate court granted Schaffer's motion for summary disposition and awarded Schaffer frivolous case sanctions against Moore only. Moore appeals as of right. Schaffer cross-appeals, challenging the probate court's refusal to impose sanctions against Moore's counsel as well as Moore. We affirm the probate court's summary disposition decision and award of sanctions, but modify the sanctions award to provide that sanctions are imposed against both Moore and his attorney. The decedent is the father of Moore and Schaffer, who are half-siblings. The decedent owned residential real property located at 6439 Bedview Drive in Saline, Michigan. On December 23, 1996, he quitclaimed the property from himself to himself and Moore, as joint tenants with full rights of survivorship. On March 3, 1998, the decedent borrowed $122,000 from Great Lakes Bank and granted Great Lakes Bank a mortgage on the Bedview property as security for the loan. The decedent was the sole signatory of the promissory note and mortgage. The decedent subsequently refinanced the mortgage loan through TCF Bank. The decedent never resided in the Bedview home. Moore lived in that home and made all the mortgage payments pursuant an arrangement with the decedent.

-1-

The decedent died in 2001 and Schaffer was appointed personal representative of his estate. Schaffer did not list the TCF Bank loan as a debt of the estate. Instead, she advised Moore that upon the decedent's death, Moore became legally obligated to pay the mortgage note, property taxes, and homeowner's insurance on the Bedview property. Moore did not question Schaffer's advice and continued to pay the monthly mortgage payments until 2007. Moore approved Schaffer's petition to close the decedent's estate in 2003. In 2007, TCF Bank initiated foreclosure proceedings against Moore after he ceased making the monthly payments. Moore alleges that he learned during the proceedings that he was not legally obligated to pay the mortgage because he was not a party to the original promissory note or mortgage agreement. That lawsuit was resolved through a settlement. Moore subsequently filed a petition to reopen the decedent's estate, which the probate court granted. In 2008, Moore initially filed this action against Schaffer, alleging that she fraudulently misinformed him of his obligation to repay the mortgage loan when she knew that the debt should attach to the estate, in Oakland Circuit Court. In 2009, his lawsuit was dismissed because of a lack of subject-matter jurisdiction, and thereafter, Moore filed the current action in the Oakland Probate Court. Schaffer moved for summary disposition on the ground that Moore's action was barred by the six-year limitations period for fraud, and further, that Moore could not establish a claim for fraud because he possessed all the relevant information concerning the decedent's mortgage loan. The probate court granted Schaffer's motion for summary disposition. Following summary disposition, citing to MCL 600.2591, MCR 2.625(A)(2), and MCR 2.114(E), Schaffer moved for sanctions against Moore and his attorney. Attached to Schaffer's motion for sanctions was an itemized list totaling $18,924.21, which purported to represent the actual costs of $3,591.71 and attorney fees of $15,332.501 incurred as a result of Moore's "frivolous action." Included in the total $18,924.21 sought were expenses incurred in defending against Moore's initial action filed in the circuit court. The probate court granted Schaffer's motion for sanctions and awarded the complete $18,924.21; however, the probate judge specified that the sanctions were only imposed against Moore and not his attorney. I. SUMMARY DISPOSITION This Court reviews a trial court's decision on a motion for summary disposition de novo. Grimes v Dep't of Transp, 475 Mich 72, 76; 715 NW2d 275 (2006). Although the probate court did not specify the subrules under which it granted summary disposition, Schaffer moved for summary disposition under MCR 2.116(C)(10), arguing that there was no genuine issue of material fact with respect to Moore's claim for fraud. Schaffer also moved for summary disposition on the ground that Moore's action was barred by the applicable statute of limitations.

1

Schaeffer's motion for sanctions has these amounts flip-flopped, but the itemized attachment clearly shows that the $15,332.50 was for attorney fees, while the $3,591.70 was for other costs.

-2-

Summary disposition may be granted under MCR 2.116(C)(7) when a claim is barred by the statute of limitations.2 A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). In evaluating the motion, this Court considers the affidavits, pleadings, depositions, admissions, and any other documentary evidence submitted by the parties in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Coblentz v City of Novi, 475 Mich 558, 567-568; 719 NW2d 73 (2006). Where the proffered evidence fails to establish a genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law, summary disposition is properly granted. MCR 2.116(G)(4); Coblentz, 475 Mich at 568. When reviewing a motion under MCR 2.116(C)(7), this Court must consider all documentary evidence submitted by the parties and accept the allegations in the complaint as true unless they are contradicted by the documentary evidence. Holmes v Mich Capital Med Ctr, 242 Mich App 703, 706; 620 NW2d 319 (2000). Claims of fraud are subject to a six-year limitations period pursuant to MCL 600.5813. Badon v Gen Motors Corp, 188 Mich App 430, 435; 470 NW2d 436 (1991). Although Moore relies on representations that were made more than six years before he filed his complaint as the basis for his fraud claim, he contends that his action was timely filed pursuant to MCL 600.5855, which provides: If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations. Moore argues that he did not discover his cause of action until 2007, when he learned during the TCF Bank foreclosure proceeding that he was not legally liable for the mortgage loan because he was not a party to the promissory note or mortgage agreement. However, Moore's alleged discovery of his legal obligations in 2007 does not establish the applicability of MCL 600.5855. In Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 48; 698 NW2d 900 (2005), this Court stated: Generally, for fraudulent concealment to postpone the running of a limitations period, the fraud must be manifested by an affirmative act or misrepresentation. The plaintiff must show that the defendant engaged in some arrangement or contrivance of an affirmative character designed to prevent subsequent discovery. . . . Mere silence is insufficient. . . . If liability were

Although Schaeffer did not specifically cite MCR 2.116(C)(7) as a basis for her motion, a court may review a motion for summary disposition under the correct subrule. Spiek v Mich Dep't of Transp, 456 Mich 331, 338 n 9; 572 NW2d 201 (1998).

2

-3-

discoverable from the outset, then MCL 600.5855 will not toll the applicable period of limitations. [Citations and internal quotations omitted.] In this case, Moore does not identify any affirmative act by Schaffer that somehow concealed his cause of action or prevented him from discovering that he had a potential cause of action against Schaffer for fraud. Instead, he argues that it is not necessary to show any affirmative act of concealment because Schaffer had a fiduciary duty to provide accurate information regarding the estate. As personal representative of the decedent's estate, Schaffer owed Moore a fiduciary duty to "discharge all of the duties and obligations of a confidential fiduciary relationship, including the duties of undivided loyalty; impartiality between heirs, devisees, and beneficiaries; care and prudence in actions." MCL 700.1104(e); MCL 700.1212(1). In Brownell v Garber, 199 Mich App 519, 529; 503 NW2d 81 (1993), this Court analyzed the application of MCL 600.5855 in the context of a legal malpractice action, in which the defendant-attorney owed a fiduciary duty to the plaintiff-client. This Court recognized three possible situations under which a legal malpractice claim could arise, and discussed the applicable limitations period for each situation, to wit: 1. The case in which the malpractice is not fraudulently concealed and is apparent at the time it is committed. In such a case, the two-year period begins to run when the act of malpractice occurs. MCL

Download IN RE MOORE ESTATE.pdf

Michigan Law