in Re Arthur H Alson Trust ( 2019 )


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  •             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 ARTHUR H. ALSON TRUST.
    ARLENE SCHERL,                                                       UNPUBLISHED
    June 13, 2019
    Petitioner-Appellee,
    v                                                                    No. 343845
    St. Clair Probate Court
    ARNOLD ALSON,                                                        LC No. 2018-000097-TV
    Respondent-Appellant.
    Before: GADOLA, P.J., and BOONSTRA and SWARTZLE, JJ.
    PER CURIAM.
    Respondent appeals by right the probate court’s order authorizing the sale of real estate
    and ordering that the proceeds be split evenly between respondent and petitioner. We affirm.
    I. PERTINENT FACTS AND PROCEDURAL HISTORY
    Petitioner and respondent are the children of Arthur Alson, now deceased. Arthur was
    the grantor of a revocable living trust (the trust) that named respondent as successor trustee.
    Relevant to this appeal, Arthur and his wife Alma transferred a house on Canal Drive in Port
    Huron, Michigan (the house) to the trust in 2016 via quit claim deed. Alma died in 2016; Arthur
    died in 2018.
    On February 22, 2018, petitioner filed a petition to invalidate the trust, alleging that the
    trust was invalid on several grounds. Along with that petition, petitioner filed a petition for
    injunction seeking to have the probate court enjoin respondent from selling the house (and from
    otherwise acting as successor trustee) and appoint her as a special personal representative in
    order to complete the sale of the house and distribute the proceeds.
    The following day, a hearing was held on petitioner’s request for an injunction and
    appointment as special representative. Respondent informed the probate court that he had been
    served with the petition and notice of hearing around 10:00 p.m. the night before, and had been
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    unable to obtain legal representation. Petitioner’s counsel and respondent spoke before the
    hearing and the attorney explained that respondent was “absolutely entitled to representation,”
    but that this was only “a preliminary hearing for the purposes of kind of freezing things and
    seeing where we go from here.”
    Respondent told the probate court that the house would be sold “[i]n three business
    days,” and that he “100 percent” intended to give petitioner half of the proceeds from the sale.
    Respondent later reiterated that he had “the full intention of giving [petitioner] 50 percent of that
    money” if he could complete the sale of the house. Petitioner’s attorney told the probate court
    that his client did not care who signed the closing papers, so long as petitioner received half of
    the proceeds from the sale of the house. Respondent again stated that he was “willing to divide
    50/50 on [the sale] immediately.” The probate court then asked petitioner’s counsel,
    [I]f I were to do an order that confirmed the ownership of that house is in the
    trust, despite the questions of its validity, and there’s agreement to the
    beneficiaries of the trust that the proceeds of the sale be split equally between
    [petitioner] and [respondent], that would be something that you would agree to?
    Petitioner’s counsel answered, “Yes.” When asked if he would agree to this arrangement,
    respondent said, “Absolutely.” Later that day, the probate court entered an order that authorized
    the sale of the real estate and that reflected the agreement the parties had made on the record at
    the hearing. The order did not grant any of the relief that petitioner had requested.
    In March 2018, respondent, now represented by counsel, filed a motion for
    reconsideration or relief from the probate court’s order, arguing that the order inappropriately
    distributed trust assets before other issues in the action were resolved, and arguing further that
    respondent was prejudiced by his lack of notice and inability to retain counsel before the hearing.
    After a hearing, the probate court denied respondent’s motion, stating that respondent received
    adequate notice of the previous hearing considering “the emergency nature of it” as the hearing
    needed to occur before the house was sold. The probate court further noted that respondent
    chose to proceed without an attorney, and “made a statement under oath in court that [petitioner]
    gets half of the [proceeds from the sale of the] house.” The probate court entered an order
    requiring that the proceeds of the sale of the house be immediately distributed and split evenly
    between petitioner and respondent.
    This appeal followed.
    II. STANDARD OF REVIEW
    We review for clear error a probate court’s factual findings and review its dispositional
    rulings for an abuse of discretion. In re Temple Marital Trust, 
    278 Mich. App. 122
    , 128; 748
    NW2d 265 (2008). A probate court “abuses its discretion when it chooses an outcome outside
    the range of reasonable and principled outcomes.” 
    Id. “A finding
    is clearly erroneous when a
    reviewing court is left with a definite and firm conviction that a mistake has been made, even if
    there is evidence to support the finding.” In re Duke Estate, 
    312 Mich. App. 574
    , 580-581; 887
    NW2d 1 (2015) (quotation marks and citation omitted).
    -2-
    III. ANALYSIS
    Respondent argues that the probate court erred when it entered an order authorizing the
    sale of the house and ordering that the proceeds of that sale be split evenly between respondent
    and petitioner on the basis of the terms of a settlement agreement made in open court, because
    respondent agreed to the settlement terms when he was unrepresented by counsel and did not
    receive adequate notice of the hearing at which the settlement agreement was reached. We
    disagree.
    An agreement between parties is enforceable if “it was made in open court.”
    MCR 2.507(G). “As a general rule, settlement agreements are final and cannot be modified.”
    Clark v Al-Amin, 
    309 Mich. App. 387
    , 395; 872 NW2d 730 (2015) (quotation marks and citation
    omitted). “This is because settlements are favored by the law, and therefore will not be set aside,
    except for fraud, mutual mistake, or duress.” 
    Id. A settlement
    agreement may also be set aside
    for “unconscionable advantage.” Plamondon v Plamondon, 
    230 Mich. App. 54
    , 56; 583 NW2d
    245 (1998). “[A] party cannot void a settlement agreement merely because [he] has had a
    change of heart, nor can he do so merely because [his] assessment of the consequences [of the
    settlement] was incorrect.” 
    Clark, 309 Mich. App. at 396
    (quotation marks and citation omitted).
    The probate court entered an order after respondent agreed at the hearing, on the record in
    open court, to split the proceeds from the sale evenly with petitioner. Respondent now argues
    that he should not be bound to the settlement agreement he reached with petitioner because
    petitioner was represented by counsel when the parties reached a settlement agreement but
    respondent was not, and also because respondent had less than 24 hours to prepare for the
    hearing at which the settlement agreement was reached.
    Respondent’s argument is unpersuasive under the circumstances of this case. Respondent
    and petitioner are siblings competing for the estate of their deceased father. About four days
    before the house was to be sold, petitioner filed a petition to enjoin respondent from acting as
    successor trustee (specifically including in the sale of the house) and to be named special
    personal representative so that she could control the sale of the house. Respondent was served
    with the petition on the night that it was filed. Due to the short timeframe involved, the court
    held a hearing the day after the petition was filed to determine who should control the sale of the
    house and, if it was sold, what should be done with the proceeds from the sale. The settlement
    agreement resolved those issues.
    At the hearing, both respondent and petitioner stated that they wanted to sell the house,
    and respondent repeatedly and emphatically agreed to split the proceeds of the sale evenly with
    petitioner if the court allowed him to complete the sale of the house. Respondent’s statements
    demonstrate that he understood the agreement he was making; further, the agreement involved
    something that a layperson could easily understand without an attorney. The probate court also
    explained that the order it would enter only dealt with the sale of the house and that questions
    regarding the validity of the trust and what assets, if any, were included in the trust or in the
    estate would be determined at a later date. Respondent has failed to demonstrate the presence of
    fraud, mutual mistake, duress, or unconscionable advantage as required to set aside a settlement
    agreement. 
    Clark, 309 Mich. App. at 395
    .
    -3-
    Respondent also argues that he should be relieved from compliance with the probate
    court’s order based on the grounds found in either MCR 2.612(C)(1)(a) or (f). We disagree.
    MCR 2.612(C)(1) provides:
    On motion and on just terms, the court may relieve a party or the legal
    representative of a party from a final judgment, order, or proceeding on the
    following grounds:
    (a) Mistake, inadvertence, surprise, or excusable neglect.
    * * *
    (f) Any other reason justifying relief from the operation of the judgment.
    To set aside an order under MCR 2.612(C)(1)(f), the following three requirements must be met:
    (1) the reason for setting aside the judgment must not fall under subsections a
    through e, (2) the substantial rights of the opposing party must not be
    detrimentally affected if the judgment is set aside, and (3) extraordinary
    circumstances must exist that mandate setting aside the judgment in order to
    achieve justice. [King v McPherson Hosp, 
    290 Mich. App. 299
    , 304; 810 NW2d
    594 (2010) (quotation marks and citations omitted).]
    Respondent does not argue in his brief on appeal that any mistake, inadvertence, or
    excusable neglect occurred. While he does argue that he received inadequate notice of the
    hearing, it is not clear whether he is arguing that the purportedly inadequate notice constituted
    mistake, inadvertence, surprise, or excusable neglect. “An appellant may not, in his or her brief
    on appeal, simply announce a position or assert an error and then leave it to this Court to
    discover and rationalize the basis for the appellant’s claims, unravel and elaborate upon the
    arguments, and search for authority to support his or her position.” 1031 Lapeer, LLC v Rice,
    
    290 Mich. App. 225
    , 233-234; 810 NW2d 293 (2010). Further, the record shows that respondent
    elected to proceed with the hearing rather than delay it (and, presumably, risk delay of the sale of
    the house) in order to obtain representation. Respondent has not demonstrated that he is entitled
    to relief from the probate court’s order under MCR 2.612(C)(1)(a).
    Respondent has also failed to establish the requirements of MCR 2.612(C)(1)(f).
    “[R]elief is [generally] granted under subsection f only when the judgment was obtained by the
    improper conduct of the party in whose favor it was rendered.” 
    King, 290 Mich. App. at 304
    (quotation marks and citations omitted). Respondent does not allege that petitioner engaged in
    improper conduct, and the record shows that petitioner served respondent as soon as possible
    after filing the petition, which was occasioned by the imminent sale of the house. Therefore,
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    respondent’s argument that he is entitled to relief from the probate court’s order under
    MCR 2.612(C)(1)(f) is unpersuasive.1
    Affirmed.
    /s/ Michael F. Gadola
    /s/ Mark T. Boonstra
    /s/ Brock A. Swartzle
    1
    Further, we note that respondent took a position before the probate court, which the probate
    court adopted, and which resulted in petitioner being denied any of her requested relief; yet
    respondent now takes the opposite position on appeal. Although the parties have not raised the
    issue, we note that respondent’s arguments on appeal may well be barred by the doctrine of
    judicial estoppel. See Spohn v Van Dyke Pub Sch, 
    296 Mich. 470
    , 479; 822 NW2d 239 (2012)
    (“Judicial estoppel is an equitable doctrine, which generally prevents a party from prevailing in
    one phase of a case on an argument and then relying on a contradictory argument to prevail in
    another phase.”) (Quotation marks and footnotes omitted).
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Document Info

Docket Number: 343845

Filed Date: 6/13/2019

Precedential Status: Non-Precedential

Modified Date: 6/14/2019