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STATE OF MICHIGAN COURT OF APPEALS

RONALD WILLIAM COOPER, THOMAS DAVID COOPER, and YVONNE R. COOPER, Plaintiffs-Appellants/CrossAppellees, and WILLIAM J. COOPER, Plaintiff, v EDGEWATER BANK and 1ST SOURCE BANK, a/k/a FIRST SOURCE BANK, Defendants-Appellees, and FIFTH THIRD BANK, Defendant/Cross-Plaintiff-Appellee, and MIDWAY BAPTIST CHURCH, Defendant/Cross-DefendantAppellee/Cross-Appellant, and DENNIS R. LOWELL, Defendant/Cross-Defendant.

UNPUBLISHED July19, 2011

No. 296189 Berrien Circuit Court LC No. 2009-000024-CZ

Before: SAWYER, P.J., and WHITBECK and OWENS, JJ. -1-

PER CURIAM. Plaintiffs appeal as of right the trial court's orders granting in part defendant Midway Baptist Church's motion for summary disposition as to plaintiffs' claims involving defendants Edgewater Bank and Fifth Third Bank, denying defendant 1st Source Bank's motion for summary disposition, and granting summary disposition in favor of plaintiffs pursuant to MCR 2.116(I)(2) as to the claims involving 1st Source. Plaintiffs maintain that the trial court improperly granted summary disposition in favor of Edgewater and Fifth Third and partial summary disposition in favor of Midway Baptist in a December 23, 2009, order. Midway Baptist cross appeals as of right the January 12, 2010, order because it contends that the trial court erred by granting summary disposition in favor of plaintiffs regarding the claims involving 1st Source. We affirm in part, reverse in part and remand for proceedings consistent with this opinion. This action involves a power of attorney that Eleanor Cooper created shortly before her death for changing the beneficiaries of her certificates of deposit (CDs). In January 2008, Eleanor was 83 years old and lived alone. She was hospitalized from late January 2008 through the beginning of February 2008. On or about February 18, 2008, Eleanor asked her friend Dennis Lowell to act as her attorney in fact. Eleanor had known Lowell since the mid-1970s from Midway Baptist Church. She saw him at church on Sundays, and he regularly helped her with "odd jobs" such as cleaning storm gutters, fixing her toilet, raking leaves, and repainting. Initially, Lowell declined Eleanor's request, but after she persisted, he finally agreed to accept the power of attorney. Eleanor had been divorced for years and was estranged from her sons Ronald and Thomas Cooper who are plaintiffs in the instant action. She instructed Lowell to change the beneficiaries of her CDs at Edgewater, Fifth Third, and 1st Source Banks from her sons to Midway Baptist. On or about February 27, 2008, Eleanor was readmitted to the hospital and her condition was not good. Lowell was subsequently able to change the CD beneficiaries at Edgewater and Fifth Third. On March 3, 2008, 1st Source informed Lowell that in addition to the power of attorney, it wanted further documentation regarding his authority to change the beneficiaries of Eleanor's CDs. That day Lowell went to the hospital and Eleanor signed a letter to 1st Source instructing it to change the beneficiary of her CDs. On March 4, 2008, Eleanor died. Lowell submitted the letter signed by Eleanor to 1st Source on March 4, 2008, and when he returned on March 5, 2008, he explained that his power of attorney had expired because of Eleanor's death. 1st Source had Lowell sign an "assignment form" and completed the change of beneficiaries on the CDs.
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Plaintiffs argue that the trial court improperly granted summary disposition to Edgewater, Fifth Third, and Midway Baptist on the claims involving the Edgewater and Fifth Third CDs. We review the grant or denial of summary disposition de novo. Maiden v Rozwood, 461 Mich

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A probate action, 2008-0229-DE-M, before Berrien County Probate Judge Mabel Johnson Mayfield was pending at the time the complaint was filed.

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109, 118; 597 NW2d 817 (1999). "A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint." Id. at 120. The moving party has the initial burden of supporting its position by affidavits, depositions, admissions or other documentary evidence, and then the burden shifts to the opposing party to establish that a genuine issue of material fact exists. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). In reviewing a motion granted under (C)(10), we only consider the substantively admissible evidence actually proffered in opposition to the motion. Maiden, 461 Mich at 121. A trial court considers the evidence in the light most favorable to the non-moving party. Id. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Summary disposition is properly granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10). "A power of attorney provides the agent with all the rights and responsibilities of the principal as outlined in the agreement." In re Estate of Capuzzi, 470 Mich 399, 402; 684 NW2d 677 (2004). "A primary purpose of a power of attorney is to evidence the delegation of authority to perform particular legal acts, which the principal could personally perform, to an appointed agent." Persinger v Holst, 248 Mich App 499, 504; 639 NW2d 594 (2001). "[P]owers of attorney are to be construed in accordance with the principles governing the law of agency." VanderWall v Midkiff, 166 Mich App 668, 677; 421 NW2d 263 (1988). "It is a longstanding legal principle that a duly authorized agent has the power to act and bind the principal to the same extent as if the principal acted." Capuzzi, 470 Mich at 402. "In effect, the agent stands in the shoes of the principal." Id. In Crane v Kangas, 53 Mich App 653, 655; 220 NW2d 172 (1974), quoting 1 Callaghan's Michigan Civil Jurisprudence, Agency,

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