Dow Chemical Employees' Credit Union v. Brenda Geiling ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
DOW CHEMICAL EMPLOYEES’ CREDIT UNPUBLISHED
UNION, June 7, 2018
Plaintiff/Counter-Defendant-
Appellee,
v No. 337117
Bay Circuit Court
BRENDA GEILING, LC No. 14-003311-CK
Defendant/Counter-Plaintiff-
Appellant.
Before: GADOLA, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
Defendant, proceeding in propria persona, appeals as of right a judgment awarding
plaintiff $51,760.63 following a jury trial. The judgment resulted from a deficiency balance after
the repossession and sale of a speedboat and trailer, which served as collateral for a loan that
plaintiff had issued to defendant and on which defendant had defaulted. Defendant challenges a
variety of matters spanning from pretrial to post-trial motions. We affirm.
I. FACTUAL BACKGROUND
A. THE LOAN SECURED BY THE BOAT
In July 2006, defendant’s husband, Cal Geiling, purchased a 30-foot speedboat for
$67,000. He made repairs and improvements on the boat, including upgrading the boat’s motors
with two high performance engines he purchased for $12,000 each. In 2007, Mr. Geiling
attempted to sell the boat, listing it at $95,000. However, because the highest offer he received
was $75,000, he ultimately chose not to sell. Defendant had the boat appraised in 2008 by two
sources, James Svoboda and Paul Pangborn, both of whom testified at trial. According to Mr.
Svoboda, he estimated the engines were worth $70,000 and that the specialty trailer was worth
$10,000. Meanwhile, Mr. Pangborn appraised the boat at $94,580, and the trailer at $4,590.
On September 22, 2008, plaintiff agreed to extend two separate loans to defendant: one in
the amount of $60,000, secured by a lien on the boat and trailer, and another in the amount of
$27,593.21, secured by a lien on a 2008 Pontiac G8 sedan. The loan agreement required
defendant to maintain current contact information with plaintiff and to obtain plaintiff’s written
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consent before making major changes to the boat. In February 2010, Defendant defaulted on her
payments on the loan secured by the boat. In spite of extensive efforts to contact defendant
regarding the default, plaintiff’s loss prevention collector Julie Ann Morgrette testified that she
was unable to contact or otherwise locate defendant.1 In June 2010, however, a skip trace
company hired by plaintiff’s insurer located the boat at Wilson Motorsports, a marina owned by
Andrew Wilson.
Mr. Wilson testified that Mr. Geiling had approached him in March 2010 seeking to sell
the boat’s motors. A purchase agreement dated March 3, 2010, reflects that Mr. Wilson agreed
to purchase both motors with exhaust, drives, steering, and gimbles for $12,500, with a down
payment of $7,500 and the remaining balance to be applied to a $5,000 debt owed by Mr.
Geiling to Wilson Motorsports from a previous bill. Defendant, however, denied that Mr.
Geiling either signed the March 3 agreement or asked Mr. Wilson or Wilson Motorsports to sell
the boat or its motors. Wilson Motorsports, in turn, sold the engines and drivetrain to David
Masud for $17,000. The boat’s hull and trailer remained at Wilson Motorsports.
When Ms. Morgrette contacted Wilson Motorsports, she was informed that the marina
held a lien on the boat and that plaintiff would have to pay approximately $2,700 in delinquent
repair and storage fees in order to retrieve the boat. Plaintiff instead initiated a lawsuit in
November 2010 against Wilson Motorsports to retrieve the boat (the “Wilson litigation”). When
plaintiff learned that the engines and drivetrain had been sold to Mr. Masud, he was joined as a
defendant in that litigation. Although the parties attempted to join defendant and Mr. Geiling in
the litigation, all attempts to locate or serve them were unsuccessful. The litigation concluded
when the parties reached a settlement in October 2012. According to the settlement agreement,
plaintiff would receive possession of the boat and hull, as well as a sum of $5,000, from Wilson
Motorsports. Plaintiff would also receive $20,000 in proceeds from Mr. Masud’s insurer; from
these funds, plaintiff would purchase the boat motors and drivetrain from Mr. Masud for
$10,000. As a result of this litigation, plaintiff incurred approximately $14,000 in attorney fees,
which were added to defendant’s account balance.
Ms. Morgrette testified that, after plaintiff had acquired the boat and motors, she hired
John Gorm, co-owner and service manager of Linwood Beach Marina, to make repairs to and
sell the boat. Mr. Gorm testified that the boat was in “disheartening” condition when it was
repossessed. The boat lacked engines, outdrives, propellers, and mechanical systems, and it had
water, leaves, and debris in the hull. When Mr. Gorm eventually received the boat’s engines,
they were partially disassembled and were missing parts. Because the boat was a racing boat
capable of high speeds, Mr. Gorm had to ensure that it was safe to operate, and he dedicated 50
hours of labor to repairing the boat. The cost of repairs totaled $8,683.16.
1
According to plaintiff, defendant’s whereabouts remained unknown until February 14, 2014,
when she sent a letter to plaintiff claiming damages as a result of plaintiff’s alleged disclosure of
her Social Security number.
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Once the boat was fully repaired and ready for sale in January 2012, Mr. Gorm testified
that he advertised it on several websites and in his showroom.2 Mr. Gorm further stated that
while the boat had an original MSRP of $185,900 had it been sold brand new, its industry trade-
in value would be just $46,800, and its retail value with a dealership warranty would be $70,340.
Mr. Gorm initially listed the boat at $90,000. However, after being on the market for a year, the
boat had still not sold. Mr. Gorm testified that he had difficulties selling the boat for a number of
reasons, including its history of repossession and extensive repairs. Accordingly, the list price
was lowered over time.
After being on the market for approximately two years, the boat was ultimately sold in
June 2014 for $41,600 to Sally Town. Unbeknownst to Linwood Marina or to plaintiff at the
time of sale, Ms. Town was the mother-in-law of Mr. Masud and had purchased the boat on his
behalf. Mr. Masud testified that, in light of his involvement in the previous litigation, he decided
to make an offer using Ms. Town as a “straw buyer” because he believed that if plaintiff knew of
his involvement, plaintiff would increase the price or refuse to deal with him.
Testimony offered by Nick Eisentraut, an employee of plaintiff familiar with defendant’s
account, established that a sum of $35,000 in net proceeds from the sale of the boat was applied
to defendant’s balance, resulting in a payoff balance of $22,343.70. An additional $10,830.12 in
repairs and $14,062.95 in court-ordered legal fees from the Wilson litigation raised defendant’s
balance to $47,236.77. Mr. Eisentraut testified that as of July 2, 2014, defendant’s deficiency,
including interest, was $49,585.
B. THE LOAN SECURED BY THE CAR
As indicated above, in September 2008, plaintiff extended a second loan to defendant in
the amount of $27,593.21, secured by a lien on a 2008 Pontiac G8 sedan. Defendant defaulted
on payment of this loan in March 2010. As previously described, during the period from
February 2010 through February 2014, plaintiff was unable to locate or contact defendant.
Plaintiff was also unable to locate the car for repossession, and consequently tendered the claim
to its insurer, which paid a portion of the remaining loan obligation.
On April 18, 2013, the Clare County Sheriff informed plaintiff, as the first secured party,
that the vehicle had been abandoned and taken into custody. On a condition report, the car was
recorded as having collision damage, including scratches, dents, and chipped glass, as well as no
battery. Plaintiff redeemed the car and, on May 23, 2013, sent defendant notice at her last
known address of its intention to sell it at a public sale. The car was sold at auction on June 23,
2013, leaving an alleged deficiency balance of $227.
2
After learning defendant’s whereabouts, plaintiff personally served on defendant a demand
letter and notice of intent to sell the boat on March 14, 2014.
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C. PROCEDURAL HISTORY
On May 16, 2014, plaintiff filed a two-count action against defendant seeking the
deficiency owed on the loans secured by the boat (Count I) and by the car (Count II). Defendant,
in turn, filed several counterclaims alleging that plaintiff had failed to dispose of the boat in a
commercially reasonable manner, incurred unnecessary costs in litigation and repairs, breached
the covenant of good faith and fair dealing, and violated the Social Security Number Privacy
Act, MCL 445.81 et seq., by disseminating unredacted versions of plaintiff’s credit reports and
loan application.
The trial court granted plaintiff’s motion for summary disposition as to defendant’s
Social Security Number Privacy Act counterclaim. The parties also submitted cross-motions for
summary disposition regarding the remainder of plaintiff’s claims and defendant’s
counterclaims. However, plaintiff specified that, should the trial court decline to grant summary
disposition with respect to its Count II claim regarding the deficiency on the loan secured by the
car, it would prefer to voluntarily dismiss that claim. At the same time, defendant filed a motion
seeking leave to amend her counterclaim in order to assert additional claims. The trial court
denied defendant’s motion for leave to amend on the basis of delay. It further denied the parties’
cross-motions for summary disposition, finding there to be a question of fact with respect to the
commercial reasonableness of the sale of the boat. However, it granted plaintiff’s request to
voluntarily dismiss Count II.
Following trial, the jury returned a verdict in favor of plaintiff, finding that plaintiff sold
the boat in a commercially reasonable manner and that plaintiff was entitled to $49,585 in
damages. Defendant moved for a new trial and for judgment notwithstanding the verdict, and
the trial court denied these motions. The court entered an order of judgment against defendant in
the amount of $51,760.63, which included the verdict and taxable costs.
II. DISCUSSION
A. EXHIBIT SUBMITTED ON APPEAL
As an initial matter, plaintiff contends that Exhibit C to defendant’s brief on appeal was
not part of the record before the trial court and therefore is not properly before this Court.
Exhibit C is an excerpt of the Dow Chemical Employees’ Credit Union Account Agreement &
Disclosures and was not incorporated into the record before the trial court. It is a fundamental
and well-established principle of appellate practice that “ ‘[t]his Court’s review is limited to the
record established by the trial court, and a party may not expand the record on appeal.’ ” In re
Rudell Estate, 286 Mich App 391, 405; 780 NW2d 884 (2009), quoting Sherman v Sea Ray
Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). Accordingly, this Court declines to
consider this exhibit.
B. FAIRNESS OF TRIAL
1. JUROR BIAS
Defendant first contends that the trial court abused its discretion by denying her motion
for a new trial based on evidence discovered after trial that a juror failed to disclose her relatives’
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employment at Dow Chemical Company. We disagree. In accordance with MCR
2.611(A)(1)(b), a motion for a new trial may be premised on juror bias or misconduct. We
review a trial court’s decision to deny a motion for a new trial based on juror bias for an abuse of
discretion. Froede v Holland Ladder & Mfg Co, 207 Mich App 127, 130; 523 NW2d 849
(1994); see also Bynum v ESAB Group, Inc, 467 Mich 280, 283; 651 NW2d 383 (2002). A trial
court abuses its discretion when it “chooses an outcome falling outside the range of principled
outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010).
Civil litigants have the right to trial before a fair and impartial jury unless the parties
waive that right. Const 1963, Art 1, § 14. A juror is presumed to be qualified and competent to
serve, and the burden is on the challenging party to establish otherwise. Froede, 207 Mich App
at 130. To rebut this presumption, the challenging party must establish that (1) the juror would
have been excused for cause, (2) the juror would have been otherwise dismissed, or (3) the party
was actually prejudiced. Id.
Defendant maintains that the juror in question would have been dismissed for cause
based on the fact that three members of her immediate family are current or former employees of
Dow Chemical Company. A prospective juror may be excused for cause if the juror “is related
within the ninth degree (civil law) of consanguinity or affinity to one of the parties or
attorneys[.]” MCR 2.511(D)(8). Defendant’s argument presumes that Dow Chemical Company
and plaintiff, Dow Chemical Employees’ Credit Union, are related companies. However, there
is no indication in the record that these two corporate entities are related. That employees of
Dow Chemical Company are merely eligible to become members of Dow Chemical Employees’
Credit Union does not establish any meaningful connection. Defendant has not demonstrated
that the juror’s relations are, in fact, members of the credit union. As the party seeking reversal
on appeal, defendant is responsible for providing this Court with a factual basis for her argument.
Petraszewsky v Keeth, 201 Mich App 535, 540; 506 NW2d 890 (1993). Because defendant has
failed to provide a factual basis demonstrating a meaningful connection between the juror and
plaintiff, she has not met her burden to establish that the juror should have been excused for
cause.
Next, defendant contends that, had the juror truthfully disclosed her relatives’
connections with Dow Chemical Company, she would have peremptorily challenged that juror.
“It is indispensable to a fair trial that a litigant be given a reasonable opportunity to ascertain on
the voir dire whether any of the jurors summoned are subject to being challenged for cause or
even peremptorily.” Fedorinchik v Stewart, 289 Mich 436, 438-439; 286 NW 673 (1939). To
this end, a juror must answer questions truthfully. Froede, 207 Mich App at 140. However, a
false statement, standing alone, is an insufficient basis on which to set aside a jury’s verdict. Id.
Rather, “ ‘[t]here must either be a showing of actual prejudice or it must be established . . . that
the moving party would have successfully challenged for cause or otherwise dismissed the juror
in question had the truth been revealed prior to trial.’ ” Gustafson v Morrison, 57 Mich App 655,
664; 226 NW2d 681 (1975), quoting Citizens Commercial & Savings Bank v Engberg, 15 Mich
App 438, 440; 166 NW2d 661 (1968) (citations omitted).
The record does not support defendant’s position that the juror in question gave false
answers to any questions during voir dire or otherwise prevented defendant from reasonably
deciding whether to exercise a peremptory challenge. During voir dire, defendant questioned the
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jury members regarding any relationship they might have with any person or entity represented
on the witness list, including Wilson Motorsports, Linwood Beach Marina, Mr. Masud, or Home
Builders Association. Notably, defendant did not specifically ask the jury members whether they
had any relationship with Dow Chemical Company. The juror in question thus did not make a
false statement or fail to disclose any relationships, and defendant may not fault the juror for
failing to answer a question that defendant did not ask. Diligence during voir dire extends to
making “a careful inquiry of a prospective juror under oath.” Id. at 663, citing Clemmons v
Super Food Services, Inc, 3 Mich App 377; 142 NW2d 491 (1966). By neglecting to question
the jury members regarding any relations to Dow Chemical Company or affiliated entities,
defendant failed to exercise due diligence. Accordingly, that the juror did not disclose familial
ties to Dow Chemical Company does not provide a sufficient basis to set aside the verdict.
Finally, defendant has neither argued that she was actually prejudiced nor established any
indications of actual prejudice such that she was denied an impartial jury. See People v Miller,
482 Mich 540, 548-549; 759 NW2d 850 (2008) (“A juror’s failure to disclose information that
the juror should have disclosed is only prejudicial if it denied the defendant an impartial jury.”).
For these reasons, we reject defendant’s argument that the jury selection in this case deprived her
of a fair trial.
2. ATTORNEY MISCONDUCT
Defendant maintains that she was deprived of her right to a fair trial due to certain
misconduct allegedly exhibited by plaintiff’s attorneys. We disagree. Generally, “[t]he ‘no
objection—no ruling—no error presented’ rule requires counsel to seek to have error cured
before the case is submitted to the jury,” unless the conduct could not have been cured. Reetz v
Kinsman Marine Transit Co, 416 Mich 97, 101-102; 330 NW2d 638 (1982). In this case,
defendant did not object to the conduct of plaintiff’s counsel during trial and instead raised the
issues for the first time after the jury had rendered its verdict in her motion for a new trial. The
trial court denied defendant’s motion for a new trial with respect to the alleged misconduct. This
Court typically reviews for an abuse of discretion the trial court’s decision on a motion for a new
trial on the basis of attorney misconduct. Veltman v Detroit Edison Co, 261 Mich App 685, 688;
683 NW2d 707 (2004). However, in civil cases where a party has not preserved the issue
through a timely request for a curative instruction, the following standard applies:
When reviewing an appeal asserting improper conduct of an attorney, the
appellate court should first determine whether or not the claimed error was in fact
error and, if so, whether it was harmless. If the claimed error was not harmless,
the court must then ask if the error was properly preserved by objection and
request for instruction or motion for mistrial. If the error is so preserved, then
there is a right to appellate review; if not, the court must still make one further
inquiry. It must decide whether a new trial should nevertheless be ordered
because what occurred may have caused the result or played too large a part and
may have denied a party a fair trial. If the court cannot say that the result was not
affected, then a new trial may be granted. [Reetz, 416 Mich at 102-103.]
It is well-established that “parties are entitled to a fair trial on the merits of the case,
uninfluenced by appeals to passion or prejudice.” Layton v Cregan & Mallory Co, 269 Mich
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574, 583; 257 NW 888 (1934). Pervasive attorney misconduct may deprive a party of a fair trial,
Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 289-290; 602 NW2d 854
(1999), and a trial court may grant a new trial pursuant to MCR 2.611(A)(1)(b) if the prevailing
party committed misconduct affecting the moving party’s substantial rights. Counsel commits
misconduct when he engages in attempts “to inflame or prejudice the jury, based upon facts not
in the case . . . .” Firchau v Foster, 371 Mich 75, 78; 123 NW2d 151 (1963).
First, defendant challenges the following comments made by plaintiff’s counsel during
voir dire describing the structure of a credit union as distinguished from a bank:
The credit union is where people come together, pool their money, and
make loans essentially to one another, and it’s – it’s not a for-profit.
* * *
The profits are – are fed back, if you will, to the members in terms of
maybe lower interest rates, dividends, whatever the case may be. Whereas a bank
– a millionaire can buy a lot of stock in J.P. Morgan and he’s got a bigger
ownership interest than the person whose [sic] got only one share.
A credit union is, each member has one share, and its members loaning to
each other.
Additionally, defendant objects to statements made by plaintiff’s counsel framing the lawsuit as
an attempt collect the deficiency balance on behalf of the credit union members. Defendant
argues that these comments represent improper attempts to garner juror sympathy. We disagree.
With respect to the statements made during voir dire differentiating the credit union from
a bank, plaintiff’s counsel was presumably attempting to assess juror prejudice against banks and
to clarify the distinction. In fact, plaintiff’s attorney prefaced his remarks by asking the jury
members if they understood the difference, and one of the jurors initially supplied that credit
unions are member-owned while banks are not. These remarks, as well as any comments that
plaintiff sought to recover the deficiency on behalf of its members, merely represent factual
statements and do not constitute improper efforts to inflame or appeal to juror sympathies. Cf.
Reetz, 416 Mich at 111 (holding that comments stressing a party’s wealth or corporate status are
improper).
Further, reversal is not appropriate when a party fails to make a timely objection and any
prejudice could have been resolved by a curative instruction. Id. at 105. Immediate instruction
by the court may cure most improper remarks, unless those remarks are severe or numerous. Id.
at 106, 111. Defendant did not object to counsel’s statements at the time they were made, and
the trial court was thus unable to issue an immediate instruction to alleviate any perceived
prejudice. There is no indication that the remarks were so severe or pervasive that a tailored
instruction could not have cured them. Moreover, even without an objection, the trial court
instructed the jury that sympathy for either party should not influence its decision, and this Court
presumes that juries follow their instructions. See Mich Dep’t of Transp v Haggerty Corridor
Partners Ltd Partnership, 473 Mich 124, 178-179; 700 NW2d 380 (2005). Thus, counsel’s
remarks do not warrant reversal.
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Second, defendant argues that, during closing argument, plaintiff’s counsel made
inflammatory statements and improperly accused defendant of lying. Specifically, defendant
objects to the following statements:
I don’t know if you’ve heard the term “Hutzpah.” Hutzpah probably nails exactly
what’s going on here. Hutzpah is defined as the boy that kills his parents and then
begs the Court for mercy because he’s an orphan, and that’s what we’ve got here,
really.
Plaintiff’s counsel then expressed skepticism at defendant’s version of events – that she stored
the boat with Wilson Motorsports in January 2010 and that Mr. Wilson thereafter sold the boat’s
engines without defendant’s knowledge or consent, forging the March 3, 2010 sales agreement
with Mr. Geiling. Plaintiff’s counsel highlighted certain inconsistencies between defendant’s
version of events and other pieces of evidence, arguing that her story “doesn’t make a lick of
sense.” Rather, plaintiff’s counsel maintained that the evidence demonstrated defendant’s intent
to default on the loan and “part out” the boat for what money she could obtain. Plaintiff’s
counsel concluded:
Her story—Her—I submit, her testimony in this case is just flat out not cre—it’s a
lie. It’s a lie. I’m just going to call it that. I’m not going to say, not credible.
She was lying when—with the stuff she’s telling you about what happened with
the boat.
Attorneys may, in their discretion, “ ‘discuss the character of witnesses, the probability of
the truth of testimony given on the stand, and may, when there is any reasonable basis for it,
characterize testimony.’ ” Reetz, 416 Mich at 108 n 21, quoting Smith v. Jennings, 121 Mich
393, 397; 80 NW 236 (1899). Additionally, an attorney may argue that a witness’s testimony
was fabricated when contrary evidence has been presented. Id. at 109. Finally, it is not improper
to point out that a party did not produce evidence in support of that party’s position. Id. Viewed
as a whole, counsel’s arguments were proper, as they concerned the credibility and demeanor of
defendant in the face of contradictory evidence. These statements were neither the continual
“unsubstantiated insinuations” at issue in Kern v St Luke’s Hosp Ass’n of Saginaw, 404 Mich
339, 352; 273 NW2d 75 (1978), nor the “unjustified, direct attacks” on witnesses’ integrity at
issue in Wayne Co Bd of Rd Comm’rs v GLS Lease Co, 394 Mich 126, 134; 229 NW2d 797
(1979). We therefore conclude that counsel did not commit misconduct during his closing
argument.
Third, defendant argues that plaintiff’s counsel acted inappropriately in front of the jury
by rolling his eyes and shaking his head during defendant’s testimony. We cannot conclude that
misconduct occurred because defendant did not object to the alleged misconduct or make a
contemporaneous record, and there is no evidence of inappropriate conduct in the record. See
Hilgendorf v St John Hosp & Med Ctr Corp, 245 Mich App 670, 683; 630 NW2d 356 (2001)
(“The cold record before us leaves no room to conclude that [defense counsel] committed any
sort of misconduct, intentional or unintentional.”). Defendant did not raise this issue until after
the jury announced its verdict and the trial court polled the individual jurors. When the trial
court then asked the parties if they had anything further for the record, defendant asserted that
plaintiff’s co-counsel had been making faces during her testimony. The trial court noted that it
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had not noticed any such conduct, but ruled that it was too late for it to do anything about the
alleged misconduct. Indeed, defendant may not harbor error as an appellate parachute when she
was aware of, but failed to promptly address, the alleged misconduct at trial. See id. Therefore,
reversal is not warranted.
C. EVIDENTIARY ISSUES
Next, defendant contends that the trial court abused its discretion by admitting the
deposition testimony of Mr. Geiling and by admitting the March 3, 2010 sales agreement
between Mr. Geiling and Mr. Wilson. Defendant argues that both pieces of evidence were
irrelevant and inadmissible hearsay. 3 Defendant also argues that the trial court erred by
excluding her proffered ABOS Marine Blue Book valuation document. We disagree with each
of defendant’s arguments.
We review a trial court’s evidentiary rulings for an abuse of discretion. Edry, 486 Mich
at 639. A court abuses its discretion when it “chooses an outcome falling outside the range of
principled outcomes.” Id. We review de novo preliminary questions of law surrounding the
admission of evidence, such as whether a rule of evidence bars admitting it. Dep’t of Transp v
Frankenlust Lutheran Congregation, 269 Mich App 570, 575; 711 NW2d 453 (2006).
We first turn to the trial court’s admission of Mr. Geiling’s deposition testimony.
Hearsay is “a statement, other than the one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Hearsay is
inadmissible, unless it is subject to a hearsay exception. MRE 802. Deposition testimony is
generally considered inadmissible hearsay. Lombardo v Lombardo, 202 Mich App 151, 154;
507 NW2d 788 (1993). However, if a declarant is unavailable to testify4 as a witness at trial,
MRE 804(b)(5) allows the trial court to admit
[t]estimony given as a witness in a deposition taken in compliance with law in the
course of the same or another proceeding, if the party against whom the testimony
is now offered, or, in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.
3
Defendant also argues in her reply brief that the deposition testimony should have been
excluded under MRE 403 because it was more prejudicial than probative. We decline to address
this issue. Defendant did not make such an objection at trial, and a reply brief is not the proper
medium to first argue an issue on appeal. MCR 7.212(G); Blazer Foods, Inc v Restaurant Props,
Inc, 259 Mich App 241, 252; 673 NW2d 805 (2003).
4
A declarant is unavailable if he or she is exempted from testifying on the basis of privilege.
MRE 804(a)(1). Mr. Geiling was unavailable to testify because defendant asserted spousal
privilege.
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The deposition testimony introduced at trial was taken during the course of litigation
between Mr. Geiling and Secord Lake Marina regarding the boat. While Secord sought to
recover payment for services rendered installing the upgraded boat engines, Mr. Geiling claimed
dissatisfaction with Secord’s work. As a result of Secord’s allegedly poor workmanship, Mr.
Geiling claimed that he incurred additional costs in correcting the defects and that he was unable
to sell the boat at its true value. In light of the nature of the suit and Mr. Geiling’s position that
the boat was worth more than he was able to sell it for, it was in his interest to demonstrate
through his own testimony a high valuation of the boat. Likewise, in the present case, defendant
maintained that plaintiff did not dispose of the boat in a commercially reasonable manner, as
evidenced by her position that the boat’s value was much greater than the sale price. It was
therefore also in her interest to demonstrate a high valuation of the boat. Accordingly, as Mr.
Geiling was defendant’s predecessor in interest, the hearsay exception set forth in MRE
804(b)(5) applies.
Defendant also contends that Mr. Geiling’s testimony regarding the boat’s value in 2007
was not relevant to its value when it was sold. We disagree. Evidence is relevant when it has
“any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” Haggerty
Corridor, 473 Mich at 138; see also MRE 401. A fact of consequence is a fact that “is within the
range of litigated matters in the controversy.” Morales v State Farm Mut Auto Ins Co, 279 Mich
App 720, 731; 761 NW2d 454 (2008). The boat’s value was of central importance in this case.
Defendant disputed that plaintiff failed to dispose of the boat in a commercially reasonable
manner on the ground that the boat was worth more than the amount received in the sale. Thus,
Mr. Geiling’s testimony regarding the historical value of the boat, including the fact that he
attempted to sell the boat for $95,000, would tend to have a bearing on the likelihood of the
commercial reasonableness of the sale. Indeed, this testimony tended to prove that Mr. Gorm’s
decision to list the boat initially for $90,000 was reasonable. For these reasons, the trial court’s
decision to admit Mr. Geiling’s deposition testimony did not fall outside the range of principled
outcomes.
Second, we turn to the trial court’s admission of the March 3, 2010 sales agreement
between Mr. Geiling and Mr. Wilson. Defendant maintains that the agreement was improperly
admitted because it was unauthenticated, irrelevant, and prejudicial. These arguments are
without merit. The duplicate of the sales agreement was authenticated through the testimony of
Mr. Wilson, a party to the agreement, and defendant has offered no evidence raising a genuine
question as to the authenticity of the document. Next, defendant failed to object to the relevance
of the sales agreement at trial and thus has failed to preserve this issue for appellate review.
However, defendant’s argument is unavailing even on its merits, as the sales agreement concerns
the sale of the boat’s engines, a significant aspect of the boat’s history that would impact its
value. As previously discussed, the boat’s value was relevant to whether the boat’s ultimate sale
was commercially reasonable. Finally, because defendant also failed to object to the prejudicial
effect of the sales agreement during trial, she has failed to preserve this issue for appellate
review. In any event, introduction of the sales agreement was not prejudicial because Mr.
Wilson had previously testified regarding the sale of the boat’s engines.
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Third, we turn to the trial court’s decision to exclude from evidence the ABOS Marine
Blue Book valuation submitted by defendant at two points during trial.5 Initially, during the
testimony of Mr. Svoboda, the appraiser who surveyed the boat in 2008, defendant sought to
introduce the ABOS valuation, which she “did online, putting in adjustments.” Plaintiff objected
on the basis of foundation, arguing that defendant had entered adjustments without knowledge of
whether those adjustments were present when the boat was sold. Mr. Svoboda agreed he had no
knowledge of the boat’s condition when it was sold in 2014 and therefore could not verify the
adjustments. The trial court sustained plaintiff’s objection, determining that defendant had not
established a foundation for admitting the exhibit.
Defendant again sought to admit the ABOS valuation during Mr. Wilson’s testimony.
Plaintiff made similar objections as to foundation and relevance because Mr. Wilson was
unfamiliar with the boat’s condition and features in 2014, after it had been reassembled by Mr.
Gorm. Indeed, it was established that the last time Mr. Wilson had seen the boat assembled was
in 2010. Further, Mr. Wilson’s testimony revealed that the ABOS valuation incorporated
adjustments for features not included on the boat in 2010. Thus, the trial court again ruled the
ABOS document was inadmissible for lack of foundation.
Generally, MRE 901 requires a proponent of evidence to provide “evidence sufficient to
support a finding that the matter in question is what the proponent claims.” MRE 901(b); Edry,
486 Mich at 639. In both instances in which defendant sought to admit the ABOS valuation,
neither of the witnesses could verify that the proposed exhibit accurately reflected the boat’s
condition either in 2010 or in 2014. Defendant thus failed to establish that the ABOS valuation
was based on the actual condition of the boat such that it could be considered a reliable estimate
of the boat’s value.
For these reasons, we reject defendant’s arguments that the trial court’s evidentiary
determinations fell outside the range of reasonable and principled outcomes.
D. DEFENDANT’S MOTION TO AMEND
Defendant argues that the trial court erred by denying her second motion to amend her
counterclaim on the basis of delay. We disagree. “This Court reviews for an abuse of discretion
a trial court’s denial of a motion to amend a complaint.” Tierney v Univ of Mich Regents, 257
Mich App 681, 687-688; 669 NW2d 575 (2003), citing Jenks v Brown, 219 Mich App 415, 420;
557 NW2d 114 (1996). The trial court abuses its discretion when its decision is outside the
range of principled outcomes. In re Kostin, 278 Mich App 47, 51; 748 NW2d 583 (2008).
When a party moves for leave to amend a complaint, “[l]eave shall be freely given when
justice so requires.” MCR 2.118(A)(2). The trial court may deny a party’s request for leave to
amend the complaint only if one of the following particularized reasons applies: (1) undue delay,
5
Defendant appears to argue on appeal that the ABOS valuation was self-authenticating.
However, because the trial court rejected this evidence on the grounds of foundation and
relevance only, this Court will not address the issue of authenticity.
-11-
(2) bad faith, (3) dilatory motive, (4) repeated failure to cure deficiencies, (5) undue prejudice to
the opposing party, or (6) futility of the amendment. Tierney, 257 Mich App at 687-688.
Although delay alone does not justify denial of a motion to amend, denial may be warranted if
the delay was undertaken in bad faith or would result in prejudice to the opposing party.
Weymers v Khera, 454 Mich 639, 659; 563 NW2d 647 (1997). Prejudice may exist under
circumstances where
the moving party seeks to add a new claim or a new theory of recovery on the
basis of the same set of facts, after discovery is closed, just before trial, and the
opposing party shows that he did not have reasonable notice, from any source,
that the moving party would rely on the new claim or theory at trial. [Id. at 659-
660.]
Indeed, “the longer an amendment is delayed, the greater the risk of substantial prejudice.”
Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 321; 503 NW2d 758 (1993), citing
Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973).
In August 2016, defendant filed a motion seeking leave to file an amended counterclaim.
The proposed amendments included allegations that plaintiff had breached the peace while
repossessing the car; that plaintiffs had provided inadequate notice regarding repossession and
sale of both the boat and the car; and that plaintiffs failed to respond to requests for an
accounting with respect to the public sale of the car. The trial court denied defendant’s motion to
amend on the basis that it was the product of undue delay, as the underlying facts were known to
defendant years before she filed her motion.
On appeal, defendant contends that the trial court erred because delay alone cannot justify
denial of a motion seeking leave to amend. Defendant’s position lacks merit. Defendant would
have been aware that plaintiff’s agent allegedly breached the peace when an effort was made to
repossess the vehicle in April 2013; however, she did not attempt to amend her counterclaims
until September 2016, more than three years later. Defendant also would have been aware of
plaintiff’s alleged failure to provide notice of the repossession and sale of the boat and the car, at
the latest, from the inception of the litigation. Accepting as true defendant’s claims that she
submitted to plaintiff her first request for an accounting in November 2014, defendant admitted
before the trial court that she would have been aware of the failure to comply within 14 days of
this submission. Indeed, when the trial court commented, “You knew all those facts at the time
though,” defendant responded, “Well, I did, your Honor.” Defendant’s statements during the
motion hearing directly contradict her assertions on appeal that these allegations were premised
on evidence previously withheld by plaintiff and only uncovered during discovery.
Moreover, permitting defendant to amend her complaint would have resulted in
significant prejudice to plaintiff. At the time defendant filed her motion to amend, trial was
scheduled to begin within three months, and the parties had already completed the overwhelming
majority of discovery. Nonetheless, at this late stage in the litigation, defendant sought to
introduce entirely new counterclaims and theories premised on facts known to her long before
that would require plaintiff to formulate additional defenses with only minimal discovery
remaining. Accordingly, the trial court’s decision to deny plaintiff’s motion on the basis of
undue delay did not fall outside the range of principled outcomes.
-12-
E. MOTIONS FOR SUMMARY DISPOSITION AND JUDGMENT NOTWITHSTANDING
THE VERDICT
Defendant argues that the trial court misapplied the Uniform Commercial Code (UCC) in
deciding the parties’ cross motions for summary disposition and in deciding defendant’s motion
for judgment notwithstanding the verdict. Defendant’s arguments fail because the trial court’s
legal determinations were sound and because the jury’s factual findings were supported by
sufficient evidence.
We review challenges to a trial court’s grant or denial of summary disposition de novo.
Johnson v Recca, 492 Mich 169, 173; 821 NWd 520 (2012). A motion for summary disposition
under MCR 2.116(C)(10) tests the factual sufficiency of the claims. Joseph v Auto Club Ins
Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). “In evaluating a motion for summary
disposition brought under this subsection, a trial court considers affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties . . . in the light most
favorable to the party opposing the motion.” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d
817 (1999). A party is entitled to summary disposition as a matter of law when the evidence
fails to establish a genuine issue of material fact remaining for trial. Id.This Court also reviews de novo a trial court’s decision on a motion for judgment
notwithstanding the verdict. Diamond v Witherspoon, 265 Mich App 673, 681; 696 NW2d 770
(2005). In determining a motion for judgment notwithstanding the verdict, trial courts are to
apply the following standard:
[t]he standard of review . . . requires review of the evidence and all legitimate
inferences in the light most favorable to the nonmoving party. . . . Only if the
evidence so viewed fails to establish a claim as a matter of law, should a motion
for judgment notwithstanding the verdict be granted. [Orzel v Scott Drug, 449
Mich 550, 557-558; 537 NW2d 208 (1995), citing Wadsworth v New York Life
Ins, 349 Mich 240, 253-254; 84 NW2d 513 (1957) and Schutte v Celotex Corp,
196 Mich App 135, 138; 492 NW2d 773 (1992).]
If the evidence would permit reasonable jurors to reach different conclusions, the jury verdict
must be upheld. Diamond, 265 Mich App at 682.
1. CLAIMS REGARDING THE CAR
Defendant contends that the trial court erred in denying summary disposition in her favor
with respect to the claims and counterclaims involving the loan secured by the car. Specifically,
in arguing that the trial court failed to properly apply the UCC, defendant maintains that plaintiff
supplied inadequate notice of the car’s sale, that the sale was not commercially reasonable, and
that plaintiff misapplied the proceeds of the sale. With respect to summary disposition regarding
defendant’s counterclaims, the trial court correctly determined that defendant had brought no
counterclaims relative to repossession of the car. Although defendant sought leave to amend her
counterclaim in order to assert such allegations, we have determined that this motion was
properly denied.
-13-
With respect to defendant’s challenge to the trial court’s denial of defendant’s motion
seeking summary disposition of Count II of plaintiff’s complaint, this matter is moot. Generally,
this Court does not address matters that are moot. King v Mich State Police Dep’t, 303 Mich
App 162, 192; 841 NW2d 914 (2013). “ ‘An issue is moot if an event has occurred that renders
it impossible for the court to grant relief. An issue is also moot when a judgment, if entered,
cannot for any reason have a practical legal effect on the existing controversy.’ ” Id., quoting
Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010). Here,
the trial court ultimately granted plaintiff’s request to dismiss with prejudice Count II of its
complaint, thereby granting the relief sought in defendant’s motion for summary disposition on
this claim.
2. CLAIMS REGARDING THE BOAT
Defendant next contends that the trial court erred by failing to grant her motions for
summary disposition and for judgment notwithstanding the verdict with respect to the parties’
claims and counterclaims involving the loan secured by the boat.6 Defendant challenges the
determinations and factual findings regarding three primary issues concerning the sale of the
boat: (1) the adequacy of the notice of the sale, (2) the commercial reasonableness of the sale,
and (3) plaintiff’s alleged damages. We conclude that defendant’s arguments are without merit
because she waived the argument challenging notice and because, viewing the evidence in the
light most favorable to plaintiff, reasonable jurors could have concluded that the sale was
commercially reasonable and that plaintiff proved its claimed damages.
a. NOTICE
First, defendant argues that the notifications plaintiff furnished both before and after the
sale of the boat were defective under the UCC because they inflated the amount owed and were
mailed to the wrong address. We conclude that defendant waived this argument by failing to
raise it at any point before the trial court. Our Supreme Court has held that “a litigant must
preserve an issue for appellate review by raising it in the trial court.” Walters v Nadell, 481
Mich 377, 387; 751 NW2d 431 (2008) (citations omitted). Failure to timely raise such an issue
before the trial court results in waiver of that issue on appeal, though the Court has the authority
6
On appeal, defendant does not advance any argument that the trial court erred at the summary
disposition stage by determining that questions of fact existed. Rather, she simply reiterates the
same arguments presented in her original briefing without acknowledging that plaintiff presented
conflicting evidence, let alone articulating why that evidence was insufficient to sustain the trial
court’s finding that factual questions existed. Just as parties may not rely on this Court to search
for authority in support of their position, American Transmission, Inc v Attorney General, 216
Mich App 119, 121; 548 NW2d 665 (1996), they also may not rely on the Court to develop
arguments inadequately argued, Severn v Sperry Corp, 212 Mich App 406, 415; 538 NW2d 50
(1995). Accordingly, the Court declines to review the trial court’s determination that factual
issues existed. Nonetheless, as concluded above, far from failing to establish factual questions at
the summary disposition stage, plaintiff presented sufficient evidence at trial for a reasonable
juror to find in its favor.
-14-
to review the issue to prevent a miscarriage of justice. Id. Here, Defendant did not challenge the
sufficiency of the notice with respect to the disposition of the boat in her answer or counterclaim,
in her motion for summary disposition, or in her motion for judgment notwithstanding the
verdict. Simply put, this precise issue was never advanced before the trial court, and was not at
issue at trial. Indeed, the jury was not called upon to resolve any factual issue with respect to
notice. Accordingly, we determine that the issue of notice is waived. Nonetheless, we also
conclude that waiver does not result in a miscarriage of justice, as defendant conceded in her
briefing that “[o]n March 14, 2014 the Credit Union . . . [personally] serv[ed] Geiling a Notice of
Default and Sale Disposition in the Bay County Court Room . . . .” With respect to the alleged
inflation of the amount owed, we conclude below that the amount of the debt was supported by
sufficient evidence.
b. COMMERCIAL REASONABLENESS
Second, defendant argues that the sale of the boat was not commercially reasonable for
the following reasons: (1) the purchase price was unreasonable, (2) the advertisement was
flawed, and (3) plaintiff inflated the debt by engaging in the Wilson litigation. We conclude that
sufficient evidence existed permitting the jury to conclude that the sale was commercially
reasonable with respect to each of these matters.
The UCC, MCL 440.1101 et seq., generally governs the laws of commercial transactions,
and Article 9 governs secured transactions. MCL 440.9101. Article 9 provides that, after a
default, a secured party may “dispose of any or all of the collateral in its present condition or
following any commercially reasonable preparation or processing.” MCL 440.9610(1). Article
9 also gives the debtor rights during the disposition of the collateral. MCL 440.9601(4); Fodale
v Waste Mgt of Mich, Inc, 271 Mich App 11, 22; 718 NW2d 827 (2006). Every aspect of the
disposition must be commercially reasonable. MCL 440.9610(2). The UCC provides the
following guidance on determining whether a disposition was commercially reasonable:
(1) The fact that a greater amount could have been obtained by a collection,
enforcement, disposition, or acceptance at a different time or in a different method
from that selected by the secured party is not of itself sufficient to preclude the
secured party from establishing that the collection, enforcement, disposition, or
acceptance was made in a commercially reasonable manner.
(2) A disposition of collateral is made in a commercially reasonable manner if the
disposition is made in the usual manner on any recognized market, at the price
current in any recognized market at the time of the disposition, or otherwise in
conformity with reasonable commercial practices among dealers in the type of
property that was the subject of the disposition. [MCL 440.9627.]
In a deficiency action, it is the secured party’s burden to establish “that the collection,
enforcement, disposition, or acceptance was conducted in accordance with” these provisions.
MCL 440.9626(b).
Defendant contends that plaintiff failed to establish that the $41,600 purchase price of
the boat was commercially reasonable, as she maintains the boat’s value was much greater. She
-15-
further argues that, because plaintiff never sought an appraisal of the boat, plaintiff failed to
establish the boat’s true market value at trial. However, we conclude there was extensive
testimony from which the jury could determine both the value of the boat and that the purchase
price was commercially reasonable. At trial, Mr. Gorm testified that sellers’ guidelines
established that similar boats had a trade-in value of $46,800 and a dealership retail value of
$70,340, if sold with a warranty. He also stated the boat’s price would be lower because it had
been repossessed and had reassembled engines. Similarly, Mr. Pangborn, who appraised the
boat in 2008, testified that he appraised the boat at $94,580 and the trailer at $4,590. Mr.
Svoboda, who also surveyed the boat in 2008, testified that the boat’s value would depreciate
between $5,000 and $7,000 per year.
In contrast, defendant stated at trial that when she had the boat appraised in 2008, it was
worth $160,000. Mr. Gorm confirmed that a 2008 appraisal valued the boat at $150,000 and the
trailer at $10,000. But in spite of this conflicting evidence, the jury could have chosen to credit
Mr. Gorm’s and Mr. Pangborn’s estimations of the boat’s value. Alternatively, the jury could
have determined the boat’s value in 2014 on the basis of Mr. Svoboda’s testimony regarding
depreciation. For these reasons, reasonable jurors could conclude that plaintiff established the
boat’s market value, and this Court will not disturb the jury’s factual findings. See Ellsworth v
Hotel Corp of America, 236 Mich App 185, 194; 600 NW2d 129 (1999), citing King v Taylor
Chrysler–Plymouth, Inc, 184 Mich App 204, 217; 457 NW2d 42 (1990) (“The trial court cannot
substitute its judgment for that of the factfinder, and the jury’s verdict should not be set aside if
there is competent evidence to support it.”).
With respect to the purchase price of the boat, Mr. Gorm originally listed the boat at
$90,000, which was consistent with Mr. Pangborn’s appraisal in 2008, as well as with Mr.
Geiling’s asking price of $95,000 when he listed the boat for sale in 2007. After receiving no
reasonable offers at this price, Mr. Gorm concluded “that 34,070 people [who viewed the
advertisement] agreed that the price was too high,” and consequently lowered the price to
$64,995 and later to $59,900. Mr. Gorm stated that it is more difficult to sell repossessed boats
because most buyers know that repossessed boats are “not very well taken care of.”
Additionally, Mr. Gorm was selling the boat without a warranty and had no information
regarding the boat’s history, including the number of owners, the number of times the engines
had been rebuilt, or whether it had been a saltwater or freshwater boat. Mr. Gorm stated he
received offers as low as $10,000 and $20,000, which he did not entertain. An offer for $50,000
fell through because that buyer could not obtain financing, while another offer for $45,000
resulted in no follow-up by the buyer. After two years on the market, the boat was finally sold to
Sally Town for $41,600. In light of Mr. Gorm’s testimony regarding the unsuccessful efforts to
sell the boat over the course of two years and the lack of buyer interest due to the boat’s history
of repossession and lack of warranty, a reasonable jury could conclude that plaintiff’s initial
asking price of $90,000 and ultimate acceptance of $41,600 were commercially reasonable.
Regarding the reasonableness of the advertisement of the boat, Mr. Gorm testified
extensively about his process of marketing and selling the boat. Mr. Gorm displayed the boat at
his marina facility, which received thousands of visitors on weekends. Additionally, he
explained that he has a “Web Pack” of major websites on which he advertises. One website
reported the boat received 34,070 total views, with 1,858 people opening the advertisement and
reviewing the information. Mr. Gorm stated that he received approximately a hundred calls
-16-
regarding the boat. He admitted that two of the advertisements erroneously listed the number of
engines at zero but observed that the same advertisements later stated that the engines and
outdrives had completely checked out. A subsequent advertisement indicated the boat had a total
horsepower of 1400 and two GM 568 Bow Tie gas engines. Although Mr. Gorm also admitted
that the engines were truly GM 572 models, he stated this was a four-inch discrepancy that
would not likely deter interested buyers.
Defendant highlights testimony by Mr. Wilson indicating that he had never heard of 568
engines and that, in reading the advertisement, he would conclude “they didn’t know what
they’re talking about.” However, Mr. Wilson also stated that if he was searching for a boat, he
would not limit his search to a specific type of engine and rather would see what was available.
Though the record demonstrates conflicting evidence regarding the reasonableness of the
advertisement, this conflict presents only a question of fact for the jury to resolve. See Dawe,
289 Mich App at 401. Accordingly, this Court again declines to substitute its own judgment for
that of the factfinder. See Ellsworth, 236 Mich App at 194.
Next, defendant argues that plaintiff unreasonably permitted her loan balance to become
inflated by engaging in the Wilson litigation. She maintains that, rather than incur $14,000 in
litigation costs, plaintiff could have recovered the boat by paying the $2,700 marina lien
demanded by Wilson Motorsports. We reject defendant’s argument. Under the UCC, a secured
party is entitled to deduct from the cash proceeds of a disposition “the reasonable expenses of
retaking, holding, preparing for disposition, processing, and disposing, and, to the extent
provided for by agreement and not prohibited by law, reasonable attorney fees and legal
expenses incurred by the secured party. MCL 440.9615(1)(a) (emphasis added). During trial,
Ms. Morgrette testified that plaintiff chose not to pay the $2,700 fee demanded by Wilson
Motorsports because it had no knowledge that the boat was in an acceptable condition and
because it was the legal property of plaintiff as the lienholder. Accordingly, Ms. Morgrette
stated that plaintiff initiated the litigation in order to enforce its rightful ownership interest.
Moreover, Ms. Morgrette explained that defendant was not joined as a party to this litigation
because she could not be located, as discussed in detail above. In view of this testimony, we
hold that a reasonable jury could have concluded that plaintiff acted reasonably when it initiated
the Wilson litigation.
c. DAMAGES
Finally, defendant argues that plaintiff failed to establish its damages or properly apply
credits to defendant’s account. Regarding the application of credits, defendant specifically
maintains that the $15,000 in proceeds obtained from settlement of the Wilson litigation should
have been applied toward the $14,000 incurred in attorney fees from that case. We disagree.
After a foreclosure sale, the secured party must account to and pay the debtor any
surplus, MCL 440.9615(4)(a), and the debtor is liable for any deficiency, MCL 440.9615(4)(b).
During trial, Mr. Eisentraut testified extensively regarding the accounting applied to defendant’s
account. According to Mr. Eisentraut, on the day the boat was sold, defendant’s account had a
principal balance of $40,030.87, an interest balance of $16,072.15, and $1,240.68 in repossession
and late fees, for a total amount owed of $62,343.70. He explained this amount reflected a credit
of $15,000, applied at the time plaintiff received the settlement funds from the Wilson litigation.
-17-
Additionally, plaintiff received $35,000 in net proceeds on the boat, which were also applied to
defendant’s $40,030.87 principal balance. Mr. Eisentraut reported that after applying the
proceeds of the boat sale, a payoff balance of $22,343.70 remained. This testimony was
consistent with Ms. Morgrette’s testimony that documents from the credit union after the boat
sale reflected a principal balance of $40,030.87 and a deficiency balance, including repossession
fees and interest, of $22,343.70.
In addition to the deficiency balance of $22,343.70, Mr. Eisentraut stated defendant owed
$10,830.12 in repair expenses and $14,062.95 in court-ordered legal fees from the Wilson
litigation. These fees raised defendant’s total balance to $47,236.77. Mr. Eisentraut testified
that, as of July 2, 2014, defendant’s deficiency balance was $49,585, including interest. Viewing
the evidence in the light most favorable to plaintiff, reasonable jurors could have concluded that
plaintiff properly applied credits to defendant’s account and that defendant owed a deficiency of
$49,585.
Defendant contends that plaintiff failed to provide the jury with account statements in
support of Mr. Eisentraut’s testimony. We reject this argument. To establish its damages,
plaintiff presented the testimony of Mr. Eisentraut, who stated he was familiar with defendant’s
account, including her payment history and loan balance. Plaintiff had no obligation to bolster
its own witness’ testimony by presenting cumulative evidence. Had Mr. Eisentraut’s testimony
been in any way inaccurate, plaintiff herself could have impeached his statements by introducing
her account statements, to which she presumably had access.
To the extent defendant argues that plaintiff failed to produce certain records during
discovery and that plaintiff committed fraud by altering a document, the Court declines to
address these issues, as they were raised for the first time in her reply brief. See MCR 7.212(G);
Blazer Foods, 259 Mich App at 252. In summary, the evidence presented was sufficient to
sustain the jury’s finding that plaintiff was entitled to $49,585, plus $2,175.63 in taxable costs.
3. ATTORNEY FEES
Defendant briefly argues that the trial court inappropriately granted summary disposition
in favor of plaintiff with respect to plaintiff’s entitlement to attorney fees incurred in the Wilson
litigation. Defendant’s argument lacks merit because the language of the loan agreement entitled
plaintiff to recover attorney fees. This Court reviews de novo a trial court’s ruling on a motion
for summary disposition, as well as the interpretation and legal effect of contractual provisions.
DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 366-367; 817 NW2d 504 (2012). If no
reasonable person could dispute the meaning of the contract’s plain language, this Court must
enforce that language as written. Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23
(2005). If the contract’s language is unambiguous, this Court interprets the contract as a matter
of law. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 469; 663 NW2d 447 (2003).
In this case, Mr. Eisentraut stated that $14,062.95 in attorney fees was added to
defendant’s balance as a result of the Wilson litigation. Pursuant to the loan agreement,
defendant contractually agreed to “pay all costs, including but not limited to any attorney fees,”
incurred by plaintiff in protecting its security interest. The trial court held on summary
disposition that, under this contractual language, plaintiff was entitled to attorney fees incurred
-18-
as a result of plaintiff’s efforts to recover the boat in the Wilson litigation. The trial court did not
err in so holding or by enforcing the unambiguous, plain language of the loan agreement. We
therefore reject defendant’s argument.
4. INTEREST
Defendant also briefly argues that plaintiff should be estopped from collecting interest on
the debt balances because plaintiff charged off its losses for tax purposes. Defendant advanced
this argument before the trial court but failed to support it. Defendant similarly fails to support
this argument on appeal with either citations to the record to support her factual assertions or to
binding precedent7 supporting her legal assertions. The party seeking reversal on appeal has the
burden to provide the court with a record that establishes the factual basis of his or her argument,
Petraszewsky, 201 Mich App at 540, as well authority in support of her position, American
Transmission, 216 Mich App at 121. If an appellant does not assert adequate support for her
position, she has abandoned it on appeal. See McIntosh v McIntosh, 282 Mich App 471, 485;
768 NW2d 325 (2008). Accordingly, defendant has abandoned this claim by failing to provide a
legal or factual basis that supports it.
E. SOCIAL SECURITY NUMBER PRIVACY ACT
Defendant argues that the trial court erred by granting plaintiff’s motion for partial
summary disposition pursuant to MCR 2.116(C)(8) with respect to her counterclaim alleging
violation of the Social Security Number Privacy Act (SSNPA), MCL 445.81 et seq. She also
contends that the trial court erred by denying her motion for reconsideration regarding this
counterclaim. We disagree.
We review de novo the trial court’s ruling on a motion for summary disposition. Maiden,
461 Mich at 118. A party is entitled to summary disposition under MCR 2.116(C)(8) if the
opposing party fails to state a claim on which relief can be granted. “A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone.”
Taylor v Kurapati, 236 Mich App 315, 359; 600 NW2d 670 (1999), quoting Jackson v Oliver,
204 Mich App 122, 125; 514 NW2d 195 (1994). The trial court must accept all factual
allegations pleaded in the complaint as true, and it may only grant summary disposition if “no
factual development could possibly justify a right of recovery.” Id.The SSNPA provides that a person shall not intentionally “include all or more than 4
sequential digits of the social security number in any document or information mailed to a
person,” unless an exception applies. MCL 445.83(1)(g). One exception applies to the “use of
all or more than 4 sequential digits of a social security number that is authorized or required by
state or federal statute, rule, or regulation, by court order or rule, or pursuant to legal discovery
7
Defendant cites only to McDonald v Asset Acceptance LLC, unpublished opinion of the United
States District Court for the Eastern District of Michigan, issued August 7, 2013 (Case No. 2:11-
cv-13080), which applied Ohio and Delaware law and was later vacated.
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or process.” MCL 445.83(2)(a) (emphasis added). Prior to initiating suit for violation of the
SSNPA, the act requires that,
[e]xcept for good cause, not later than 60 days before filing a civil action, an
individual must make a written demand to the person for a violation of section 3
for the amount of his or her actual damages with reasonable documentation of the
violation and the actual damages caused by the violation. [MCL 445.86(2).]
Defendant’s counterclaim alleged that plaintiff violated the SSNPA when, during the course of
the Wilson litigation, it transmitted to counsel for Wilson Motorsports copies of defendant’s loan
application and credit reports containing her unredacted Social Security number. The trial court
dismissed this counterclaim because defendant had failed to plead that she made a written
prelitigation demand and because and transmittal of her Social Security number fell within the
statute’s discovery exception.
On appeal, defendant contends that the trial court erred in dismissing her counterclaim
because the documents at issue – her loan application and credit reports – were not relevant to
the Wilson litigation. 8 But plaintiff cites no authority for the proposition that a document’s
relevance is determinative of whether the discovery exception applies. The exception simply
provides that the SSNPA regulations do not apply when transmittal of an individual’s Social
Security number occurred pursuant to legal discovery, as was the case here. Nonetheless, the
documents at issue were relevant under Michigan’s “ ‘open, broad discovery policy that permits
liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in
the pending case.’ ” See Augustine v Allstate Ins Co, 292 Mich App 408, 419; 807 NW2d 77
(2011), quoting Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 618; 576 NW2d
709 (1998). Evidence is relevant if it is offered to prove or disprove a matter of consequence to
the case. MRE 401; Morales, 279 Mich App at 731. Because the Wilson litigation concerned
plaintiff’s property interest in and right to recover the boat from Wilson Motorsports, the loan
documents demonstrating that property interest were decidedly relevant to that litigation.
Further, any loan documents regarding a previous loan between defendant and Wirt Financial
Services, Inc.,9 were relevant because, as part of its subsequent loan agreement with defendant,
8
Defendant also argues that plaintiff’s motion for partial summary disposition with respect to
this claim was procedurally defective because plaintiff failed to raise the discovery exception as
an affirmative defense in its answer to defendant’s counterclaim. We reject this argument
because defendant pleaded generally in its answer that defendant failed to state a claim upon
which relief may be granted. Further, MCR 2.111(F)(2) provides, “A defense not asserted in the
responsive pleading or by motion as provided by these rules is waived, except for the defenses
of . . . failure to state a claim on which relief can be granted.” (Emphasis added). Accordingly,
plaintiff was under no obligation to plead the specific bases on which it intended to seek
dismissal pursuant to MCR 2.116(C)(8).
9
Wirt Financial Services, Inc., a nonparty to the present action, extended a loan to defendant and
Mr. Geiling in July 2007. Plaintiff paid off the balance of this loan when, in September 2008, it
executed with defendant the $60,000 loan secured by the boat. During the course of the Wilson
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plaintiff paid off the balance on the Wirt Financial loan. Thus, the trial court did not err by
holding that because the discovery exception applied, defendant’s counterclaim was subject to
dismissal.
Because we hold that the trial court properly determined that defendant failed to state a
claim on the ground of the discovery exception, it is unnecessary to address the trial court’s
alternative conclusion that defendant failed to make a written demand as required by the statute.
Additionally, to the extent that defendant argues that public policy should prevent plaintiff from
disseminating her Social Security number in a case in which defendant is not a party, we decline
to create such a policy. Generally, the boundaries of public policy are defined by “the policies
that, in fact, have been adopted by the public through our various legal processes, and are
reflected in our state and federal constitutions, our statues, and the common law.” Terrien v
Zwit, 467 Mich 56, 66-67; 648 NW2d 602 (2002). Defendant identifies no existing public
policies in support of her position, and the language of the SSNPA does not itself require that the
legal discovery occur in an action in which the allegedly harmed individual is a party. See MCL
445.83(2)(a).
Finally, insofar as defendant contends on appeal that the trial court erred by dismissing
her counterclaim without compelling plaintiff’s compliance with discovery requests, we
conclude that this argument is without merit. The trial court dismissed the counterclaim on the
pleadings pursuant to MCR 2.116(C)(8) and not on the basis of the evidence. Accordingly, we
determine that the trial court properly dismissed Count IV of defendant’s counterclaim.
We affirm.
/s/ Michael F. Gadola
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
litigation, Wirt Financial, which was also a nonparty to that case, responded to a subpoena by
providing defendant’s and Mr. Geiling’s unredacted credit reports connected with the 2007 loan.
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