in Re Sally G Roth Revocable Trust ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
In re SALLY G. ROTH REVOCABLE TRUST.
SALLY ROTH DETAR and PAUL ROTH, UNPUBLISHED
October 23, 2018
Appellants,
v No. 341123
Antrim Probate Court
SHERRY ROTH-JONES O’CONNOR, LC No. 15-013063-TV
Appellee,
and
ANTHONY R. WITTBRODT, as Trustee of the
SALLY G. ROTH REVOCABLE TRUST,
Other Party.
Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.
PER CURIAM.
Trustee, Anthony R. Wittbrodt, filed a third amended petition for instructions that sought
direction from the probate court regarding a partnership’s sale of lakefront real property for
which there were multiple interested purchasers. The probate court found that a contract for the
purchase of the property had been formed between appellee, Sherry Roth-Jones O’Connor, and
Wittbrodt, acting on behalf of the partnership as a co-general partner. The probate court ordered
specific performance of the contract, authorizing Wittbrodt to sell the property to appellee.
Appellants, Sally Roth DeTar and Paul Roth, although not personally interested in purchasing
the property, took the position that there was no contract with appellee and that Wittbrodt was
required to accept a higher offer for the property that had been presented. Appellants appeal as
of right, and we affirm.
I. FACTS AND PROCEDURAL HISTORY
Louis and Sally Roth (the Roths), husband and wife and long deceased, owned three
parcels of property on Torch Lake, and this case and appeal concerns only one of those parcels,
which is a vacant lot with 29 feet of frontage on the lake (the property). The Roths had several
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children, including a daughter, our appellee. They also had a son who has passed away, and his
wife was Mary Katherine Roth (MKR). Additionally, the Roths had another son who died, and
he had three children, two of whom are appellants, along with their sister Catherine G. Roth.
These five individuals, appellee (Roths’ daughter), MKR (Roths’ daughter-in-law), appellants
(Roths’ grandchildren), and Catherine Roth (Roths’ grandchild), are beneficiaries entitled to
share in the proceeds from the sale of the property.
Sally Roth survived her husband Louis, and she created the Sally G. Roth Revocable
Trust (the trust) and the Torch Lake Properties Limited Partnership (the partnership).1 Under the
terms of the trust, Sally Roth was the trustee, and her appellee daughter and one of the now-
deceased sons were named co-successor trustees of the trust. Under the partnership agreement,
Sally Roth, as the trustee of her trust, was named the sole general partner of the partnership, with
the trust’s successor trustees to fill that role of general partner after Sally’s death. The
partnership agreement made other family members limited partners. The partnership owned the
property. Sally Roth died in 2000, rendering the trust irrevocable. Given her brother’s death,
appellee became the sole trustee of the trust and the sole general partner of the partnership.
The beneficiaries of the trust are as follows: appellee—1/3 interest; MKR—1/3 interest;
appellant Sally Roth DeTar—1/9 interest; appellant Paul Roth—1/9 interest; and Catherine G.
Roth—1/9 interest. Stated otherwise, the Roths’ daughter, appellee, holds a 1/3 interest, their
daughter-in-law, MKR, holds a 1/3 interest, and the Roths’ three grandchildren hold the last 1/3
interest, divided three ways. With respect to the partnership, the five beneficiaries are limited
partners, except for appellee, who was made the sole general partner upon her mother’s death
given her status as the successor trustee of the trust. The interests of the five beneficiary partners
in the partnership, as measured by percentages, equal their respective interests as beneficiaries
under the trust. Therefore, effectively, because the partnership owns the property, the respective
fractional interests in the property match the fractional interests of the five individuals in the
partnership and trust.
In September 2015, appellants filed a petition to remove appellee as trustee, alleging that
she was unfit to serve as trustee, that she failed to provide accountings, that she failed to protect
trust property,2 that she failed to provide information regarding the trust, and that appellee
violated her fiduciary duties by engaging in self-dealing and other matters that gave rise to
conflicts of interest. There were adjournments to allow for settlement negotiations, and in a
scheduling order, the petition was set for trial in December 2016. An order extending the period
of discovery was entered, and the trial date was bumped to January 2017. A subsequent
stipulated order extending dates provided additional time for discovery and pushed the trial date
to April 2017 or later. In February 2017, appellants filed a motion for summary disposition on
1
As expressly set forth in the trust and the partnership agreement, they are governed by the laws
of Missouri, which is where Sally Roth had been residing.
2
In addition to the property at issue, the trust and partnership hold various property interests, but
we need not discuss them, as they are irrelevant for purposes of resolving this appeal and would
only work to create confusion in an already complicated case.
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their petition to remove appellee as trustee. In response, appellee filed her own motion for
summary disposition in March 2017.
On March 15, 2017, the parties attended a probate court hearing on appellants’ motion for
summary disposition. At the start of the hearing, the court announced its understanding that a
settlement had been reached. The settlement agreement placed on the record indicated that
appellee would step down as the trustee, that attorney Anthony R. Wittbrodt would be appointed
successor trustee, that, for purposes of the partnership, appellee would remain as a general
partner, but doing so as a co-general partner with Wittbrodt, and that if there were any disputes
between appellee and Wittbrodt relative to activities of the partnership, the probate court would
resolve the matter.3 Attorney for appellants indicated that the property would be listed for sale
by appellee and Wittbrodt at fair market value, while allowing any one of the beneficiaries or
combination of beneficiaries to buy the property “at the listing price minus the brokerage
commission.” Attorney for appellee then stated, “I think that sums it up.”
In a “written agreement” signed by appellee and both appellants but not their attorneys,4
which agreement provided that it was made “as of March 15, 2017,” the agreement sets forth
several of the provisions that were stipulated to at the hearing on March 15, 2017. But it also
stated that the sale of the property was to be “for the best available terms within a reasonable
time.” The written agreement further provided:
6. Beneficiaries of the Trust and limited partners of the Partnership
may purchase all of said real property . . . for the amount of the initial listing price
minus whatever real estate commission would be payable in a sale to someone
other than a beneficiary or limited partner; if two or more beneficiaries or limited
partners compete with one another to make such a purchase, the successor trustee
[Wittbrodt] shall promptly auction such property to the highest bidder amongst
the competitors in order to maximize the sales proceeds. Therefore, any listing
agreement with any broker shall exclude compensation to a broker for a sale to
one or more beneficiaries.
***
9. To the extent that the foregoing alters or supplements the oral
agreement placed on the record by the parties in open court on March 15, 2017 in
the Proceeding, this Agreement supersedes same. . . . This Agreement may not be
modified except by a writing subscribed by the person to be bound.
There had been no mention of a highest bidder or auction at the hearing on March 15, 2017.
3
The parties noted that Wittbrodt had not yet been approached about the matter, and they
discussed steps that would be taken to choose an alternate fiduciary should Wittbrodt decline to
accept the position of trustee and co-general counsel; however, Wittbrodt later did accept the
roles, perhaps to his ultimate chagrin given the events that followed.
4
The signatures are not dated, and MKR and Catherine Roth did not sign the written agreement.
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In a motion received by the probate court on April 27, 2017, appellants sought to enforce
the March 15, 2017 settlement agreement. In this motion, it is made abundantly clear that the
written agreement referenced in the preceding paragraph had not yet been executed, as appellants
argued that despite repeated and ongoing attempts and negotiations to enter into a written
agreement, including the sending of proposed and draft agreements, appellee would not finalize
an agreement in writing. In a stipulated order entered by the probate court on May 5, 2017,
regarding the March 15, 2017 settlement, appellee stepped down as the trustee, Wittbrodt
became the trustee, appellee and Wittbrodt were named as co-general partners of the partnership,
and any disagreement between the co-general partners was to be resolved by the court. Relevant
here, the stipulated order further provided:
Anthony Wittbrodt, Esq. will select whatever appraiser or broker he
wishes and list for sale at fair market value . . . the real property owned by the
Partnership; however, any brokerage agreement will exclude a commission for a
sale to any one, or combination, of the beneficiaries of the Trust, who may buy
one or more parcels of said real property at the listing price without a brokerage
commission.
There was no language about a highest bidder or any auction. It appears from the
stipulated court order, which was signed by counsel for the parties, that counsel for appellants
had faxed the stipulated order to the probate court on May 4, 2017, which signed it the next day.
In appellants’ brief on appeal, they contend that the written agreement containing the highest-
bidder and auction language had been executed by the parties themselves on May 4, 2017. In
appellee’s brief on appeal, she maintains that the stipulated court order was entered on March 15,
2017. Given our review of the record, this is a blatant factual mischaracterization of the record.
While the stipulated court order concerned the settlement placed on the record on March 15,
2017, the order itself is dated and was entered by the probate court on May 5, 2017. Appellee
further contends in her appellate brief that the stipulated court order and written settlement
agreement were contemporaneously executed and “were dated . . . to tie the two documents
together.”
In July 2017, an appraisal of the property was prepared, and the property was valued at
$200,000. On August 2, 2017, Wittbrodt emailed counsel for the parties, stating that he had
reviewed the stipulated court order, that he was advising a realtor to put the property up for sale
for the appraised value of $200,000, that if any beneficiary wished to make an offer, the
beneficiary should go through his or her attorney, and that appellee “wants to make an offer on
the [property] and should not go through me.” In response that same day, counsel for appellants
emailed Wittbrodt, indicating that he agreed with Wittbrodt’s interpretation of the stipulated
court order, that “[n]o one has an option or right to first refusal to buy any parcel,” and that
counsel knew “of an independent party who intends to make an offer.”
A listing agreement with the realtor was executed by Wittbrodt, as co-general partner of
the partnership. The listing period commenced on August 3, 2017, and the property was listed at
$200,000 per the appraisal. On August 3, 2017, an offer was made by an outside party, Michele
Osterfeld, at the asking price of $200,000. The offer was expressly scheduled to expire at 5:30
p.m. on August 4, 2017, or upon revocation by Osterfeld, whichever was earliest.
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On August 4, 2017, at 11:29 a.m., Wittbrodt emailed counsel for the parties, stating that
he had received an offer for the property and that “if any of your clients want to submit a bid,
please do so today before 5:30.” Responding to Wittbrodt’s email at 11:41 a.m. on August 4th,5
counsel for appellants asked for more time because he was on vacation until August 7th.
Wittbrodt then emailed appellants’ attorney at 12:02 p.m. on August 4th, asking counsel whether
one of his clients “want[ed] to make an offer?” At 1:28 p.m. on August 4th, Wittbrodt emailed
the parties’ attorneys, indicating, “Advising you both that I intend to accept the offer that expires
today @ 5:30.” At 1:41 p.m. on August 4th, Wittbrodt emailed counsel for the parties, observing
that he had just spoken to appellee’s attorney and that the attorney informed Wittbrodt that
appellee would be matching the terms of Osterfeld’s offer and submitting an offer later that day.
At 2:06 p.m. on August 4th, Wittbrodt emailed appellee’s attorney, stating that Wittbrodt
assumed something in writing would be forthcoming, with the terms to be “$200K, 30 days
closing, no conditions, $5k deposit.” At 3:00 p.m. on August 4th, appellee’s attorney emailed
Wittbrodt, indicating that an offer in the form of a proposed purchase agreement was attached,
that it had been executed by appellee, and that a check for $5,000 in earnest money was being
sent by appellee directly to Wittbrodt. Appellee’s offer for the property, as reflected in the
proposed purchase agreement, was $200,001.
At 4:27 p.m. on August 4th, appellants’ attorney sent an email to Wittbrodt, which
provided that Riding, Inc., was making an offer for the property in an amount equal to $1,000
more than the best offer yet received, not to exceed $210,000, with the purchase price to be paid
in cash within 30 days.6 It does not appear that any written offer was attached to the email.
Corporate documents—state forms from the Department of Licensing and Regulatory Affairs
and the Department of Commerce—were later produced, showing that Riding, Inc., was a
Michigan corporation formed by counsel for appellants as early as 1998 and indicating that
counsel had served in roles as resident agent, officer, and president. In other words, it appears
that a company controlled by appellants’ attorney became a prospective purchaser of the
property. In an offer to purchase the property signed by appellants’ attorney on August 7th,
Riding, Inc., offered $210,000 for the property. Also on August 7th, Wittbrodt sent an email to
counsel for the parties and, for the first time, copied it to “Katie Roth,” ostensibly a reference to
MKR, absent mention of Catherine Roth. Wittbrodt indicated in the email that he had received
appellee’s $5,000 earnest money deposit and that he had not received a written offer from
appellants’ attorney’s client, which apparently was a reference to Riding, Inc. It is not clear
when Wittbrodt received the written offer from Riding, Inc., which, as noted above, was dated
August 7th. Wittbrodt concluded his email by stating, “Any discussion as to my thought of a
deadline to submit a highest and best offer & I want to confirm from the attorneys that I do have
or do not have the power to accept the highest & best offer?”
On August 11th, Wittbrodt filed a petition for instructions in the probate court. Wittbrodt
recounted the events that had transpired regarding the property up to that point in time, informing
the probate court of the three offers that had been made. Wittbrodt asserted that he consulted
5
All the pertinent dates to be discussed further in this opinion pertain to 2017.
6
With respect to the slew of emails conveyed on August 2nd and 4th, there is no indication that
MKR and Catherine Roth were ever included in the emails.
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with appellee, via her attorney, to obtain her consent to accept the highest and best offer, which
had been made by Riding, Inc., reminding the court that he needed her consent because of the
stipulated court order and her position as co-general partner of the partnership that owned the
property. Wittbrodt alleged that appellee, who had made her own offer for the property, refused
to consent to a sale to Riding, Inc., thereby triggering the requirement that the court resolve any
dispute between the co-general partners.
Before any hearing on Wittbrodt’s petition for instructions, MKR made an offer for the
property in a proposed buy-sell agreement, offering $220,000 for the property, with a $7,500
earnest money deposit and the $212,500 balance to be paid at closing. On August 21st,
Wittbrodt filed a first amended petition for instructions, incorporating MKR’s offer and asking
the probate court “to resolve the issue as to which offer to accept and/or for other and further
relief as may be requested.” Thereafter, Riding, Inc., submitted a new offer in the amount of
$230,000, with a $7,500 earnest money deposit and the $222,500 balance to be paid at closing.
On August 23rd, Wittbrodt filed a second amended petition for instructions, incorporating
Riding, Inc.’s latest offer. On August 24th, MKR submitted her second written offer, this time in
the amount of $240,000, with a $7,500 earnest money deposit and the $232,500 balance to be
paid at closing. This triggered the filing of Wittbrodt’s third amended petition for instructions on
August 24th, incorporating MKR’s latest offer.
On August 28th, appellants filed a response to Wittbrodt’s petitions for instructions,
arguing that the probate court should order Wittbrodt and appellee, as co-general partners of the
partnership, to accept the offer by Riding, Inc. On August 28th, appellee responded to
Wittbrodt’s petitions for instructions, arguing that the probate court should order Wittbrodt to
accept appellee’s offer and execute her proposed purchase agreement. Appellee contended that,
consistently with the stipulated court order and the written settlement agreement, as soon as
appellee agreed to purchase the property at list price, the partnership was bound to sell her the
property. Appellee further argued that she was the only beneficiary who had submitted an offer
within the timeline set by Wittbrodt, i.e., by 5:30 p.m. on August 4th. Appellee additionally
maintained that between her offer, Riding, Inc.’s first offer, and the initial offer made by
Osterfeld, appellee’s offer would generate the most funds for and to be divided by the
partnership, considering that a sale to appellee would preclude a commission for the realtor.
Finally, appellee argued that Riding, Inc., used material, non-public, and confidential
information obtained by appellants’ counsel to make an offer that was to the disadvantage of the
partnership and counsel’s own clients, i.e., appellants.
On September 5th, Wittbrodt filed a response regarding a hearing held on August 29th.
The record presented to this Court does not contain a transcript of that particular hearing.
Attached to Wittbrodt’s response was his affidavit. In the affidavit, Wittbrodt averred that he
“did not auction, attempt to auction, or intend to auction the property.” Further, Wittbrodt
asserted that he “never intended to accept, and never stated to [appellee] or her counsel that [he]
would accept, an offer of [appellee] that was equal to or better than the” initial $200,000 offer
made by Osterfeld. Additionally, Wittbrodt averred as follows:
4. [Appellee’s] August 4, 2017 $200,001 offer contained at least one term
that was different from terms in that Osterfeld $200,000 offer.
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5. If I had received on August 4, 2017 no offer except the Osterfeld
$200,000 offer, I might have accepted that offer before it expired at 5:30 p.m.
But, I never formed or expressed an intent to accept an offer made on August 4,
2017 if there were multiple offers; I intended to not accept any offer that day if I
received that day two or more offers for $200,000 or above, irrespective of real
estate commissions.
6. I did not notify [MKR] or Catherine G. Roth, two of the five trust
beneficiaries/limited partners, to make an offer before 5:30 p.m. on August 4,
2017; neither made an offer by that time.
7. The best offer I received before 5:30 p.m. on August 4, 2017 was . . .
from Riding, Inc. ($201,001 net of real estate commissions); on August 7, 2017
Riding, Inc. increased its offer [to] $210,000 net of real estate commissions.
8. The best offer I have seen to date is from Riding, Inc. ($250,000 net of
real estate commissions).[7]
On September 5th, appellants filed a reply brief in opposition to appellee’s brief
regarding the petitions for instructions. Appellants argued that the stipulated court order trumped
any prior agreement between the parties, given that equity owners, MKR and Catherine Roth,
were not part of or signatories to any agreement. Appellants further contended that Wittbrodt did
not hold any auction, that appellee was not entitled to having her offer accepted, that her offer
was not accepted, so there was no contract with her, and that appellee’s offer was never the best
offer. Appellants maintained that “Wittbrodt should be instructed and [appellee] should be
ordered to accept the highest offer available, e.g. Riding, Inc.’s $250,000 offer net of real estate
commissions or any higher offer made promptly.” Attached to appellants’ brief was a supporting
affidavit by their attorney who recounted the history of the case, as already alluded to above. He
did aver that on August 2nd, he had received information that appellee was telling Wittbrodt that
she had a right to purchase the property, and that counsel had communicated with Wittbrodt
about the matter, with the two agreeing that appellee had no such right.
On September 5th, MKR, through her own attorney, made her first formal appearance in
the proceedings, filing a response to Wittbrodt’s third amended petition for instructions. She
essentially argued that as to all matters pertaining to the offers, events, and communications of
August 4th, they were meaningless, as she had not received notice of anything occurring that
day. MKR requested an order approving the sale of the property to her “pursuant to her cash
offer of $240,000, the highest offer among the limited partners who hold an option to purchase
the subject property under the settlement agreement entered [by the probate court] . . . by order
7
We note that there is no corroborating document in the lower court record regarding this
alleged offer by Riding, Inc.
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dated March 15, 2017.”8 In the alternative, MKR asked the court to order that an auction be
conducted, with the property going to the highest bidder.
In a reply brief filed by appellee on September 8, 2017, she argued that Wittbrodt had
effectively made an offer via his email communications on August 4th, wherein he expressed
that an initial offer of $200,000 had been submitted and that he would give the parties until 5:30
p.m. to respond and match the bid. And appellee accepted Wittbrodt’s offer by submitting a
matching bid. Appellee contended that she “accepted the offer of . . . [Wittbrodt] pursuant to”
the stipulated court order, the written settlement agreement, and the express conditions set by
Wittbrodt.
On October 26th, a hearing was conducted on Wittbrodt’s third amended petition for
instructions. No testimony was taken, but the probate court had examined all of the documentary
evidence attached to the briefs and the petitions for instructions, encompassing all of the
paperwork referred to by us above. The probate court entertained the parties’ arguments9 and
then concluded in extremely cursory fashion absent any elaboration that “there was an offer and
acceptance by Mr. Wittbrodt.” Although we are far from certain, it appears that the probate
court may have accepted appellee’s argument that Wittbrodt had made an offer that appellee had
accepted. And by order dated November 7th, the probate court, providing no clarity whatsoever,
indicated that at the hearing, it had “concluded that there was an offer and acceptance between
Mr. Wittbrodt and [appellee] on August 4, 2017.” The probate court ordered Wittbrodt to
execute the purchase agreement that he had received from appellee on August 4th, and the court
ruled that the relief sought by appellants and MKR was denied.
Appellants appeal as of right, and they served the claim of appeal on counsel for appellee
and MKR, as well as Wittbrodt directly. Only appellee has appeared and responded to the
appeal. On appeal, appellants argue, for the first time, that the probate court lacked subject-
matter jurisdiction to adjudicate issues regarding the partnership’s property. And even if the
probate court had subject-matter jurisdiction, appellants contend that the probate court erred in
its ruling, where Wittbrodt held no auction, Wittbrodt made no offer to appellee, Wittbrodt
signed nothing to satisfy the statute of frauds, no contract was formed between Wittbrodt and
appellee, and where the probate court was confused or misled by appellee.
II. ANALYSIS
A. SUBJECT-MATTER JURISDICTION
Appellants first argue that the probate court lacked subject-matter jurisdiction to
adjudicate issues regarding the sale of the property, considering that the partnership, and not an
8
Again, there was no court order entered on March 15, 2017; rather, the stipulated court order
was signed and entered by the probate court on May 5, 2017, regarding the settlement placed on
the record back on March 15, 2017.
9
The attorneys included counsel for appellants, appellees, MKR, and counsel representing
Wittbrodt.
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estate or trust, owned the property. This issue was not presented below. However, “[c]hallenges
to subject-matter jurisdiction cannot be waived, and a court must entertain such challenges
regardless of when they are raised, or even raise such challenges sua sponte.” O’Connell v Dir
of Elections, 316 Mich App 91, 100; 891 NW2d 240 (2016). We review de novo the statutory
question whether a court has subject-matter jurisdiction. Id. at 97. Subject-matter jurisdiction
concerns a court’s power to hear and resolve a cause or matter. Id. at 100.
Pursuant to MCL 600.841(1)(a), a probate court has jurisdiction “[as] conferred upon it
under the estates and protected individuals code [EPIC, MCL 700.1101 et seq.].” EPIC provides
a probate court with exclusive jurisdiction in regard to matters that concern the removal and
appointment of a trustee. MCL 700.1302(b)(i). There is no dispute that the probate court had
exclusive jurisdiction with respect to appellants’ petition to remove appellee as trustee. And the
petition resulted in a settlement that removed appellee as trustee of her mother’s trust, that made
Wittbrodt successor trustee and co-general partner, that effectively gave Wittbrodt shared
authority to sell the property owned by the partnership, and that called upon the probate court to
resolve any disagreements between appellee and Wittbrodt in their roles as co-general partners.
Thus, the multiple petitions for instructions pursued by Wittbrodt arose out of the settlement,
which itself had arisen from the petition to remove appellee as trustee, thereby giving the probate
court jurisdiction to adjudicate the third amended petition for instructions.
Furthermore, appellants’ argument essentially views the partnership in a vacuum, failing
to recognize and appreciate its connection to the trust and the trustee. The partnership
agreement, in the opening recitals, provided:
The partners desire that THE SALLY G. ROTH REVOCABLE LIVING
TRUST, SALLY G. ROTH, TRUSTEE, and her successors be the sole General
Partner and that all the other Partners be Limited Partners.
And the partnership agreement gave the general partner, i.e., the trustee, full and
exclusive power to “sell real . . . property to any person or entity.” Thus, although it is true that
the partnership owned the property, the trust’s trustee, by virtue of the partnership agreement,
controlled the sale of partnership property.
The probate court has exclusive subject-matter jurisdiction regarding the “declaration of
rights that involve a trust [or] trustee,” including proceedings to “[d]etermine a question that
arises in the administration . . . of a trust,” or proceedings to “[i]nstruct a trustee and determine
relative to a trustee the existence or nonexistence of an immunity, power, privilege, duty, or
right.” MCL 700.1302(b)(v) and (vi) (emphasis added). With respect to Wittbrodt’s petitions
for instructions, he was asking the probate court to instruct him, as trustee and in his concomitant
role as a co-general partner of the partnership, in how to proceed in relationship to the sale of the
property. We hold that the scope of MCL 700.1302(b) encompassed the lower court
proceedings, providing the probate court with exclusive jurisdiction to entertain and adjudicate
Wittbrodt’s third amended petition for instructions regarding the sale of partnership property that
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was ultimately in the hands of the trustee under the plain language of the partnership
agreement.10 Reversal is unwarranted.
B. VALIDITY OF THE SALE
Appellants argue that the probate court erred in its ruling, given that Wittbrodt held no
auction, that Wittbrodt made no offer to appellee, that Wittbrodt signed nothing to satisfy the
statute of frauds, that no contract was formed between Wittbrodt and appellee, and considering
that the probate court was confused or misled by appellee. This Court reviews for an abuse of
discretion a probate court's dispositional rulings. In re Guardianship of Redd, 321 Mich App
398, 403; 909 NW2d 289 (2017). The probate court abuses its discretion when the court makes a
determination that falls outside the range of reasonable and principled outcomes. Id. Findings of
fact by the probate court are reviewed for clear error, and a factual finding is clearly erroneous
when we are left with a firm and definite conviction that a mistake was made. Id. We review de
novo issues of statutory construction addressed by the probate court. Id. at 403-404. This Court
also reviews de novo issues concerning the proper interpretation of a contract and the legal effect
or application of a contract. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23
(2005).
The probate court, in effect, tried Wittbrodt’s third amended petition for instructions on
documentary evidence provided by the parties. MCR 2.517(A) provides, in relevant part:
(1) In actions tried on the facts without a jury or with an advisory jury, the
court shall find the facts specially, state separately its conclusions of law, and
direct entry of the appropriate judgment.
(2) Brief, definite, and pertinent findings and conclusions on the contested
matters are sufficient, without overelaboration of detail or particularization of
facts.
(3) The court may state the findings and conclusions on the record or
include them in a written opinion.
Brevity alone is not fatal to a ruling by a trial court because the court rule does not
mandate over-elaboration of details, Powell v Collias, 59 Mich App 709, 714; 229 NW2d 897
(1975), but a court must sufficiently articulate the reasons for its decision in order to facilitate
appellate review, Dep’t of Transp v Randolph, 461 Mich 757, 767; 610 NW2d 893 (2000).
Here, the probate court did not make much of an effort to comply with MCR 2.517(A).
We cannot even tell with confidence whether the probate court found that appellee made an offer
for the property that Wittbrodt accepted or found that Wittbrodt made an offer that appellee had
accepted. Additionally, the probate court failed to address several issues presented to the court,
10
We also note that MCL 700.1302(d) provides a probate court with exclusive jurisdiction to
order “instructions or directions to a fiduciary that concern an estate within the court’s
jurisdiction.” Wittbrodt was acting as a fiduciary in this case that entailed a trust estate.
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including issues concerning notice to MKR and Catherine Roth, the lack of involvement by
MKR and Catherine Roth in the written settlement agreement and stipulated court order, and
identification of the controlling document or documents in regard to the sale of the property by
Wittbrodt—was it the stipulated court order alone or was it the stipulated court order in
conjunction with the written settlement agreement. All that being said, we come to the
conclusion that the trial court reached the correct result.
“The cardinal rule in the interpretation of contracts is to ascertain the intention of the
parties[;] [t]o this rule all others are subordinate.” McIntosh v Groomes, 227 Mich 215, 218; 198
NW 954 (1924). In light of this rule, “[i]f the language of the contract is clear and unambiguous,
it is to be construed according to its plain sense and meaning; but if it is ambiguous, testimony
may be taken to explain the ambiguity.” New Amsterdam Cas Co v Sokolowski, 374 Mich 340,
342; 132 NW2d 66 (1965); see also Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 111; 595
NW2d 832 (1999). Contract formation requires, in part, an offer and acceptance of the offer, and
no contract can be formed unless the acceptance is unambiguous and in strict conformance with
the offer. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452-453; 733 NW2d 766 (2006).
“A valid contract requires five elements: (1) parties competent to contract, (2) a proper subject
matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation.”
AFT Mich v Michigan, 497 Mich 197, 235; 866 NW2d 782 (2015). “The party seeking to
enforce a contract bears the burden of proving that the contract exists.” Id.While we have set forth some of the basic tenets of contract formation, this case is not
truly about contract formation; rather, it is about compliance with the stipulated court order and
the written settlement agreement, assuming that the written settlement agreement is even
enforceable in conjunction with the stipulated court order. The stipulated court order and the
written settlement agreement both entitled any of the five beneficiaries to purchase the property
at the “listing price” minus the real estate or brokerage commission. Although the written
settlement agreement called for an auction and a sale to the highest bidder, this only applied in
regard to competing offers between “beneficiaries and limited partners.” Appellee, a
beneficiary, plainly made an offer to Wittbrodt on August 4th slightly higher than the listing
price. The only other offers that day were from non-beneficiaries Osterfeld and Riding, Inc., and
their status as non-beneficiaries made their offers, regardless of the amount, irrelevant, because a
beneficiary willing to pay the listing price and beyond had made an offer. Ultimately, the only
other beneficiary who made an offer was MKR and, assuming enforceability of the written
settlement agreement’s highest-bidder and auction language and assuming that MKR’s bids way
beyond the deadline of 5:30 p.m. on August 4th can be considered because of a notice failure,
MKR has not appealed the probate court’s ruling. We must view that decision as reflecting that
MKR no longer wishes to pursue a purchase of the property.
Appellants, neither of whom submitted an offer at any point in time, argue that Wittbrodt
never conducted an auction and that, assuming an auction had been conducted, Riding, Inc., was
the successful bidder. Given our discussion above, this argument is irrelevant. Auction or no
auction, appellee, a beneficiary, submitted an offer of $200,001 for the property that had been
listed for $200,000, and considering that MKR has decided not to participate in the appellate
litigation, appellee is entitled to purchase the property.
Appellants next argue that Wittbrodt made no offer to appellee. We recognize that the
probate court’s ruling could be construed as finding that Wittbrodt made an offer to appellee,
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which she accepted. We do not believe that Wittbrodt technically made an offer to appellee, but
again, this is irrelevant, as appellee plainly made an offer to Wittbrodt for the property. And
pursuant to the stipulated court order and/or written settlement agreement, appellee’s offer
entitled her to purchase the property, regardless of whether Wittbrodt accepted it or not,
considering that he was ultimately legally obligated to accept it in light of the language in the
stipulated court order and/or written settlement agreement. 11 This defeats appellants’ next
argument that no contract was formed between Wittbrodt and appellee. It simply does not matter
whether Wittbrodt did not accept or did not intend to accept appellee’s order, as he had a duty to
accept it because a beneficiary, appellee, was making an offer for the property in the amount of
the listing price and beyond.12
Appellants further contend that Wittbrodt signed nothing to satisfy the statute of frauds.13
Once again, this is not really a contract case or dispute, but rather a case involving compliance
with the stipulated court order and/or written settlement agreement. Regardless of whether
Wittbrodt executed the purchase agreement containing appellee’s offer, he had an obligation and
duty to sign it, and the probate court, regardless of its reasoning, was correct in recognizing a
contract and ordering specific performance.
Finally, appellants maintain that the probate court “was confused or misled by appellee.”
Appellants first complain that appellee led the court to believe that Riding, Inc., made no offer
before 5:30 p.m. on August 4th. For the reasons discussed above, this argument is irrelevant.
Next, appellants complain that appellee misled the probate court to believe that the written
settlement agreement was binding, yet Wittbrodt, MKR, and Catherine Roth never signed it.
None of these parties are raising challenges on appeal, and we question appellants’ standing on
the matter; appellants both signed the written settlement agreement. We also note that Catherine
Roth never joined her sibling appellants in litigating anything below. Moreover, the stipulated
court order, which appellants claim trumps the written settlement agreement, supports the sale of
the property to appellee for the reasons explained earlier in this opinion. Appellants assert that
the stipulated court order did not “give a limited partner the exclusive right to buy the [p]roperty
at the listing price if, as here, there are higher bids.” This argument is entirely lacking in merit,
where the stipulated court order clearly and unambiguously provided that the trust beneficiaries
may buy the property “at the listing price without a brokerage commission.” There is no
11
Again, this conclusion is based on us not taking into consideration MKR.
12
We also note, as discussed earlier, that both Wittbrodt and appellee, as co-general partners of
the partnership, had to agree in regard to a sale, and we find it self-evident that appellee was
agreeable to her purchase of the property.
13
MCL 566.106 provides:
No estate or interest in lands, other than leases for a term not exceeding 1
year, nor any trust or power over or concerning lands, or in any manner relating
thereto, shall hereafter be created, granted, assigned, surrendered or declared,
unless by act or operation of law, or by a deed or conveyance in writing,
subscribed by the party creating, granting, assigning, surrendering or declaring the
same, or by some person thereunto by him lawfully authorized by writing.
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language indicating or suggesting that this provision does not apply if bids or offers over the
listing price are presented.
Affirmed. Having fully prevailed on appeal, appellee is awarded taxable costs under
MCR 7.219.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Brock A. Swartzle
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