Peri Roanne Weingrad v. Constance Jones ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PERI ROANNE WEINGRAD, UNPUBLISHED
October 17, 2019
Plaintiff-Appellant,
v No. 342873
Washtenaw Probate Court
CONSTANCE JONES, LC No. 17-000520-CZ
Defendant-Appellee.
Before: MARKEY, P.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Plaintiff filed this action against defendant, who is the personal representative of the
estate of plaintiff’s father. Plaintiff’s complaint contained 17 counts on 10 different theories of
recovery, the majority of which were dismissed before trial under MCR 2.116(C)(8). The case
proceeded to a bench trial on claims of breach of contract and unjust enrichment, following
which the court entered judgment in favor of defendant. Plaintiff now appeals as of right. For
the reasons set forth in this opinion, we affirm.
I. BACKGROUND
Plaintiff’s father, Joel Weingrad, 1 died on June 17, 2015. Following his death, estate
proceedings were initiated in Washtenaw Probate Court before Judge Owdziej, and defendant
was appointed by the court as personal representative of the estate. Apparently, Joel’s only
significant asset was a residential property in Ann Arbor, Michigan. While the estate
proceedings were ongoing, in November 2016, plaintiff filed a separate complaint in Washtenaw
Circuit Court claiming that she held a mortgage and promissory note on Joel’s home; plaintiff
sought to foreclose on the property and quiet title in her name. The circuit court property dispute
was transferred to the probate court and consolidated with the estate proceedings before Judge
1
Because he shares the same last name as plaintiff, we will refer to plaintiff’s father as Joel in
this opinion.
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Owdziej. Notably, on August 8, 2017, Judge Owdziej entered an order concluding that plaintiff
had not shown that she was entitled to enforce the note and mortgage that was in her possession,
which had actually been given by Joel to his parents. Judge Owdziej held plaintiff failed to
demonstrate she had personally acquired any rights under the note and mortgage. Accordingly,
Judge Owdziej rejected plaintiff’s request to foreclose and to quiet title to the property in her
name.
On May 16, 2017, while the consolidated estate and foreclosure proceedings were still
pending, plaintiff filed in the probate court the current lawsuit that is now the subject of the
instant appeal. This third case was also assigned to Judge Owdziej, although this case was not
consolidated with the other proceedings. Here, plaintiff’s first amended complaint alleged 17
counts against defendant in her capacities as an individual, as personal representative of the
estate, and as attorney for the personal representative of the estate. In an October 26, 2017 order,
the trial court granted summary disposition to defendant on all of plaintiff’s claims except for
two. The trial court permitted plaintiff’s action to proceed on her claims of breach of contract
and unjust enrichment (Counts I and II), and these claims were only allowed to proceed against
defendant in her capacity as personal representative.2 The trial court determined that Counts I
and II should be treated as a creditor action against the personal representative to enforce a claim
under MCL 700.3806(1).3 Thereafter, the case proceeded to a bench trial on these two remaining
claims. Following a bench trial, Judge Owdziej entered judgment in favor of defendant,
concluding that plaintiff had failed to establish her claims for breach of contract and unjust
enrichment. Plaintiff now appeals as of right.
II. ANALYSIS
A, JUDCIAL BIAS
On appeal, plaintiff seemingly argues that Judge Owdziej should have been disqualified
from the instant case either because she was actually biased or because her involvement in the
consolidated estate and foreclosure proceedings created an intolerable risk of bias in the instant
case. Plaintiff maintains that Judge Owdziej was required in the current case to review her own
decisions from the other cases and that Judge Owdziej’s past involvement caused her to prejudge
the current case. More generally, plaintiff asserts her disagreement with many of Judge
Owdziej’s rulings in the current case, and plaintiff contends that Judge Owdziej improperly
injected her own “judicial impressions” into the current proceedings.
Plaintiff failed to file a motion for disqualification, meaning that her claim of judicial bias
is unpreserved. See MCR 2.003(D)(1)(a); Meagher v Wayne State Univ, 222 Mich. App. 700,
2
Counts I and II were dismissed as to defendant individually and in her capacity as attorney to
the personal representative.
3
Counts I and II were premised on an alleged contract plaintiff claimed to have made with Joel
before he died whereby plaintiff would perform certain work related to improving the condition
of Joel’s house in exchange for a piano.
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726; 565 NW2d 401 (1997); People v Jackson, 292 Mich. App. 583, 597; 808 NW2d 541 (2011).
“Michigan generally follows the ‘raise or waive’ rule of appellate review.” Walters v Nadell,
481 Mich. 377, 387; 751 NW2d 431 (2008). Generally, a litigant who fails to timely raise an
issue waives appellate review of that issue unless appellate review is necessary to prevent a
miscarriage of justice. Id.; Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich
App 182, 192-193; 920 NW2d 148 (2018). Specifically, with respect to a claim of judicial bias
raised for the first time on appeal, this Court need not consider such unpreserved claims absent
unusual circumstances. Meagher, 222 Mich. App. at 726. In this case, plaintiff has not
demonstrated any unusual circumstances or otherwise shown that a miscarriage of justice will
occur if we do not review her unpreserved claims of judicial bias. Thus, these arguments are
waived. “Generally, a party may not remain silent in the trial court, only to prevail on an issue
that was not called to the trial court’s attention.” Walters, 481 Mich. at 388.
Moreover, plaintiff has not identified any actual bias or prejudice, nor has plaintiff
demonstrated that there was an objectively reasonable serious risk of actual bias or appearance of
impropriety.
“The Due Process Clause requires an unbiased and impartial decisionmaker.” Cain v
Mich Dep’t of Corrections, 451 Mich. 470, 497; 548 NW2d 210 (1996). “A trial judge is
presumed to be fair and impartial, and any litigant who would challenge this presumption bears a
heavy burden to prove otherwise.” In re Susser Estate, 254 Mich. App. 232, 237; 657 NW2d 147
(2002). Relevant to plaintiff’s arguments on appeal, under MCR 2.003(C)(1), judicial
disqualification is warranted if:
(a) The judge is biased or prejudiced for or against a party or attorney.
(b) The judge, based on objective and reasonable perceptions, has either
(i) a serious risk of actual bias impacting the due process rights of a party as
enunciated in Caperton v Massey, [556 U.S. 868]; 129 S. Ct. 2252; 173 L. Ed. 2d
1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard
set forth in Canon 2 of the Michigan Code of Judicial Conduct.
MCR 2.003(C)(1)(a) requires a showing of actual bias or prejudice. See Cain, 451 Mich.
at 495. “Opinions formed by a judge on the basis of facts introduced or events occurring during
the course of the current proceedings, or of prior proceedings, do not constitute bias or partiality
unless they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Schellenberg v Rochester, Mich, Lodge No 2225, 228 Mich. App. 20, 39; 577 NW2d
163 (1998). And “[t]he mere fact that a judge ruled against a litigant, even if the rulings are later
determined to be erroneous, is not sufficient to require disqualification or reassignment.” In re
Contempt of Henry, 282 Mich. App. 656, 680; 765 NW2d 44 (2009). “[J]udicial rulings, in and of
themselves, almost never constitute a valid basis for a motion alleging bias, unless the judicial
opinion displays a “ ‘deep-seated favoritism or antagonism that would make fair judgment
impossible’ ” and overcomes a heavy presumption of judicial impartiality.” Id. (citation omitted;
alteration in original).
In contrast to MCR 2.003(C)(1)(a), a showing of actual bias is not required to establish a
due-process violation or an appearance of impropriety under MCR 2.003(C)(1)(b). Okrie v
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Michigan, 306 Mich. App. 445, 471-473; 857 NW2d 254 (2014). A party “need not show actual
bias [i]f the situation is one in which experience teaches that the probability of actual bias on the
part of a decision maker is too high to be constitutionally tolerable.” Id. at 471 (quotation marks
and citation omitted; alteration in original). “In evaluating this issue, we consider whether, under
a realistic appraisal of psychological tendencies and human weakness, the interest poses such a
risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due
process is to be adequately implemented.” Id. (quotation marks and citation omitted). Whether
an appearance of impropriety exists requires application of an objective standard to determine
“whether the conduct would create in reasonable minds a perception that the judge’s ability to
carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Id. at
472 (quotation marks and citation omitted).
In this case, plaintiff’s claims of judicial bias are premised on her disagreements with
various rulings made by Judge Owdziej and the fact that Judge Owdziej also presided over the
prior estate and foreclosure proceedings. Plaintiff has not shown that any of these rulings were
based on deep-seated favoritism or antagonism, and Judge Owdziej’s rulings therefore do not
demonstrate judicial bias. In re Contempt of Henry, 282 Mich. App. at 680. In addition,
“[m]erely proving that a judge was involved in a prior trial or other proceeding against the same
[party] does not amount to proof of bias for purposes of disqualification.” People v Upshaw, 172
Mich. App. 386, 388; 431 NW2d 520 (1988).
Additionally, plaintiff particularly points on appeal to her civil conspiracy claim, in
which she made bare assertions seeming to imply that certain acts of Judge Owdziej in the
consolidated estate and foreclosure proceedings were part of a civil conspiracy against plaintiff
but without naming Judge Owdziej as a party to the action or including any allegations to show
that there was actually a conspiracy. We find the following analysis persuasive and adopt it as
our own for purposes of this case:
Ordinarily, a judge should disqualify himself when specifically named as a
conspirator in a complaint because “the possibility of actual bias is too high to be
constitutionally tolerable.” Indeed, we can envision few situations in which
disqualification would not be required when, as in the present case, a judge is
named in a complaint as a conspirator in wrongdoing.
Here, however, the highly unusual circumstances demonstrate that the
possibility of actual bias was not so high as to require disqualification. During the
underlying criminal proceedings, plaintiff was found incompetent to assist in his
own defense. In motions, grievances, and the present malpractice actions,
plaintiff pursued a conspiracy theory that he alleged included both defendants
[who had provided plaintiff with legal representation in the underlying criminal
proceedings], the prosecutor and both the trial judge and chief judge in #190657.
We note that while plaintiff alleged in his complaint in #190657 that both the trial
judge and chief judge were a part of this conspiracy, he did not name them as
parties. Our review of the record indicates that plaintiff has failed to provide any
corroboration of this conspiracy theory. If plaintiff could have raised a genuine
factual issue regarding this theory, he would have done so in response to
defendants’ motions for summary disposition. As discussed below, in both
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#188486 and #190657, the trial judges appropriately granted the summary
disposition motions, which required consideration of the substance of plaintiff’s
conspiracy claims. Plaintiff has had several opportunities to present evidence
confirming this conspiracy theory and has failed to do so. When a party makes
unsubstantiated charges toward a judge, we cannot ignore the possibility that such
charges are an attempt to judge-shop. Here, plaintiff leveled unsubstantiated
conspiracy charges at virtually everybody involved in his criminal proceedings, as
well as making independent charges of bias against the trial judge in #188486. . . .
[A]utomatic disqualification on the mere filing of a complaint naming a judge
would allow plaintiffs to judge-shop by including frivolous allegations of
wrongdoing by a judge in a complaint. Our review of the record here convinces
us that plaintiff utterly failed to substantiate the conspiracy allegations and that
the trial judge and chief judge accordingly did not abuse their discretion in failing
to disqualify themselves on the basis of such allegations. [Starks v Varga,
unpublished per curiam opinion of the Court of Appeals, issued April 8, 1997
(Docket No. 188486), p 4 (citations omitted).]
Accordingly, plaintiff is not entitled to relief on this issue.
B. SUMMARY DISPOSITION
Next, plaintiff contends that the probate court erred by granting defendant’s motion for
partial summary disposition under MCR 2.116(C)(8).4 We review de novo the trial court’s
decision on a motion for summary disposition. Oesterle v Wallace, 272 Mich. App. 260, 263; 725
NW2d 470 (2006).
A motion for summary disposition under MCR 2.116(C)(8) tests the legal
sufficiency of the complaint. All well-pleaded factual allegations are accepted as
true and construed in a light most favorable to the nonmovant. A motion under
MCR 2.116(C)(8) may be granted only when the claims alleged “are so clearly
unenforceable as a matter of law that no factual development could possibly
justify recovery.” [Johnson v Pastoriza, 491 Mich. 417, 434-435; 818 NW2d 279
(2012) (citations omitted).]
Summary disposition on the basis of a prior judgment, i.e., collateral estoppel or res
judicata, is properly granted under MCR 2.116(C)(7). King v Munro, ___ Mich App ___, ___;
___ NW2d ___ (2019) (Docket No. 341714); slip op at 2; Alcona Co v Wolverine Environmental
Prod, Inc, 233 Mich. App. 238, 246; 590 NW2d 586 (1998). “[I]n considering a motion under
that subrule, the court may consider all affidavits, pleadings, and other documentary evidence,
construing them in the light most favorable to the nonmoving party.” Alcona, 233 Mich. App. at
4
However, plaintiff states in her brief on appeal that she “waives review” of the dismissal of her
constructive fraud claim.
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246. “A trial court’s decision on a motion to amend a complaint is reviewed for an abuse of
discretion.” Long v Liquor Control Comm, 322 Mich. App. 60, 67; 910 NW2d 674 (2017).
Plaintiff briefly asserts that the trial court erred by dismissing her claims for breach of
contract and unjust enrichment against defendant in her individual capacity. Plaintiff’s breach of
contract claim was premised on an alleged contract that plaintiff claimed to have made with Joel
before his death whereby she would perform certain work for him related to improving the
conditions of his house in exchange for a piano. Her unjust enrichment claim was based on the
alleged failure to compensate plaintiff for the value she claimed to have added to the house for
the work she claimed to have performed. Plaintiff’s claims for breach of contract and unjust
enrichment—premised on a purported agreement with Joel—are plainly claims solely against
Joel’s estate, making defendant a proper party in her capacity as personal representative for the
estate rather than in her individual capacity. See generally Shenkman v Bragman, 261 Mich. App.
412, 416; 682 NW2d 516 (2004) (discussing distinction between personal representative’s
representative and individual capacities). The only apparent connection between defendant and
plaintiff’s alleged contract with Joel is that plaintiff submitted her claim to defendant as the
estate’s personal representative for payment and plaintiff sought to obtain payment of this claim
through the instant action. A claimant may commence a proceeding against the personal
representative if the personal representative has disallowed the claimant’s claim against the
estate. MCL 700.3806(1); In re Weber Estate, 257 Mich. App. 558, 561; 669 NW2d 288 (2003).
This is exactly how the trial court treated plaintiff’s breach of contract and unjust enrichment
claims in permitting them to proceed to trial. Accordingly, the trial court did not err by
dismissing plaintiff’s claims for breach of contract and unjust enrichment against defendant in
her individual capacity under MCR 2.116(C)(8).
Next, plaintiff argues that the trial court erred by dismissing her various breach of
fiduciary duty claims. The common theme of these claims was that plaintiff disagreed with
various actions taken by defendant related to the estate and such actions therefore constituted a
breach of defendant’s fiduciary duty.
Under MCL 700.3712, “[i]f the exercise or failure to exercise a power concerning the
estate is improper, the personal representative is liable to interested persons for damage or loss
resulting from breach of fiduciary duty to the same extent as a trustee of an express trust.”5
MCL 700.3703(1) expressly provides that a personal representative is a fiduciary:
5
MCL 700.1105(c) provides as follows:
“Interested person” or “person interested in an estate” includes, but is not
limited to, the incumbent fiduciary; an heir, devisee, child, spouse, creditor, and
beneficiary and any other person that has a property right in or claim against a
trust estate or the estate of a decedent, ward, or protected individual; a person that
has priority for appointment as personal representative; and a fiduciary
representing an interested person. Identification of interested persons may vary
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A personal representative is a fiduciary who shall observe the standard of
care applicable to a trustee as described by section 7803. A personal
representative is under a duty to settle and distribute the decedent’s estate in
accordance with the terms of a probated and effective will and this act, and as
expeditiously and efficiently as is consistent with the best interests of the estate.
The personal representative shall use the authority conferred by this act, the terms
of the will, if any, and an order in a proceeding to which the personal
representative is party for the best interests of claimants whose claims have been
allowed and of successors to the estate.
MCL 700.1212(1) describes the duties of a fiduciary:
A fiduciary stands in a position of confidence and trust with respect to
each heir, devisee, beneficiary, protected individual, or ward for whom the person
is a fiduciary. A fiduciary shall observe the standard of care described in section
7803 and shall discharge all of the duties and obligations of a confidential and
fiduciary relationship, including the duties of undivided loyalty; impartiality
between heirs, devisees, and beneficiaries; care and prudence in actions; and
segregation of assets held in the fiduciary capacity. With respect to investments,
a fiduciary shall conform to the Michigan prudent investor rule.
MCL 700.7803, referenced in each of the above statutes, provides as follows:
The trustee shall act as would a prudent person in dealing with the
property of another, including following the standards of the Michigan prudent
investor rule. If the trustee has special skills or is named trustee on the basis of
representation of special skills or expertise, the trustee is under a duty to use those
skills.
“[A] claim of breach of fiduciary duty is generally defined as follows: Damages may be
obtained for a breach of fiduciary duty when a position of influence has been acquired and
abused, or when confidence has been reposed and betrayed.” In re Baldwin Trust, 274 Mich
App 387, 401; 733 NW2d 419 (2007), aff’d 480 Mich. 915 (2007) (quotation marks and citation
omitted).6
from time to time and shall be determined according to the particular purposes of,
and matter involved in, a proceeding, and by the supreme court rules.
6
Although the Michigan Supreme Court affirmed this Court’s decision in In re Baldwin Trust,
the Supreme Court rejected some of the reasoning of the Court of Appeals majority; specifically,
the Supreme Court held that “[u]nder the facts of this case, which the probate court judge viewed
in the light most favorable to the petitioner, even if the respondent [trustee and personal
representative] owed a duty to the petitioner, the probate judge did not err in granting summary
disposition to the respondent in both the estate proceeding and the trust proceeding, because
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In this case, plaintiff cites no authority for the proposition that her mere disagreements
with the decisions of defendant as the personal representative establishes that defendant breached
her fiduciary duty. Defendant had a duty to act in the best interests of the estate, MCL
700.3703(1), and a duty to act with impartiality between heirs, devisees, and beneficiaries, MCL
700.1212(1). However, plaintiff argued that defendant’s fiduciary duty was to accede to
plaintiff’s precise demands and make decisions about matters involving the estate that were in
accordance with the outcomes plaintiff desired. Clearly, this is not the nature of a personal
representative’s fiduciary duty, and plaintiff understandably has not cited any legal authority that
would permit us to so conclude. Furthermore, the claims for breach of fiduciary duty in
plaintiff’s first amended complaint contain no allegations, beyond plaintiff’s mere subjective and
conclusory assertions of disagreement with defendant’s decisions, as to how any of defendant’s
actions were legally improper such that they constituted a breach of fiduciary duty. See MCL
700.3712. Accordingly, the trial court did not err by dismissing plaintiff’s breach of fiduciary
duty claims under MCR 2.116(C)(8) for failure to state a claim on which relief may be granted.
See In re Hammond Estate, 215 Mich. App. 379, 385-386; 547 NW2d 36 (1996) (concluding
claims of improper estate administration and breach of fiduciary duty were without merit when
the appellants failed to provide any support for position that the personal representative’s
conduct was improper, constituted wrongdoing, or was a breach of fiduciary duty); accord In re
Baldwin Trust, 480 Mich. at 915.
Next, plaintiff argues that the trial court erred by dismissing her abuse of process claim.
This claim was essentially a challenge to actions that defendant took in connection with efforts to
sell Joel’s home.
A meritorious claim of abuse of process contemplates a situation where
the defendant has availed himself of a proper legal procedure for a purpose
collateral to the intended use of that procedure, e.g., where the defendant utilizes
discovery in a manner consistent with the rules of procedure, but for the improper
purpose of imposing an added burden and expense on the opposing party in an
effort to conclude the litigation on favorable terms. [Dalley v Dykema Gossett,
287 Mich. App. 296, 322; 788 NW2d 679 (2010) (quotation marks and citation
omitted).]
More fully, this Court has explained a claim for abuse of process as follows:
Abuse of process is the wrongful use of the process of a court. This action
for the abuse of process lies for the improper use of process after it has been
issued, not for maliciously causing it to issue. To recover upon a theory of abuse
of process, a plaintiff must plead and prove (1) an ulterior purpose and (2) an act
in the use of process which is improper in the regular prosecution of the
proceeding. . . . [T]he act must be something more than just the initiation of a
there was no evidence of wrongdoing by the respondent.” In re Baldwin Trust, 480 Mich. 915
(2007).
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lawsuit, and the ulterior purpose has to be something other than settling a suit. . . .
One way in which process is sometimes abused, is by making use of it to
accomplish not the ostensible purpose for which it is taken out, but some other
purpose for which it is an illegitimate and unlawful means. [Lawrence v Burdi,
314 Mich. App. 203, 211-212; 886 NW2d 748 (2016) (quotation marks and
citations omitted).]
In this case, plaintiff’s allegation that defendant wanted to sell the house is not an
allegation of an improper or ulterior purpose; it is simply an indication that defendant was acting
in her capacity as personal representative to sell Joel’s property and to settle his estate. See MCL
700.3703(1); MCL 700.3711. Absent an allegation that defendant had an ulterior purpose, i.e.,
some purpose other than settling Joel’s estate, plaintiff failed to state a claim for abuse of
process. Accordingly, plaintiff is not entitled to relief on this issue.
Next, plaintiff contends that the trial court erred by dismissing her claim of civil
conspiracy. “A civil conspiracy is a combination of two or more persons, by some concerted
action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by
criminal or unlawful means.” Advocacy Org for Patients & Providers v Auto Club Ins Ass’n,
257 Mich. App. 365, 384; 670 NW2d 569 (2003), aff’d 472 Mich. 91 (2005) (quotation marks and
citation omitted); see also Urbain v Beierling, 301 Mich. App. 114, 131; 835 NW2d 455 (2013).
“[A] claim for civil conspiracy may not exist in the air; rather, it is necessary to prove a separate,
actionable tort.” Advocacy Org, 257 Mich. App. at 384 (quotation marks and citation omitted);
see also Urbain, 301 Mich. App. at 132 (stating that a civil conspiracy claim requires the plaintiff
to “establish some underlying tortious conduct”).
In setting forth her claim for civil conspiracy in the first amended complaint, plaintiff
complained about an ex parte order defendant obtained from the trial court related to attempts to
sell Joel’s home. However, plaintiff’s allegations do not indicate how plaintiff believes this was
a criminal or unlawful act, nor do they indicate what criminal or unlawful purpose plaintiff
believes was accomplished. We note that a personal representative generally “has the same
power over the title to estate property that an absolute owner would have, in trust, however, for
the benefit of creditors or others interested in the estate” and that the personal representative may
generally exercise this power “without notice, hearing, or court order.” MCL 700.3711.
Plaintiff’s allegations in her first amended complaint do not demonstrate that the actions related
to attempts to sell the house constituted an actionable tort. As previously stated, plaintiff failed
to sufficiently allege that any underlying tort occurred and thus did not state a claim for civil
conspiracy. Advocacy Org, 257 Mich. App. at 384; Urbain, 301 Mich. App. at 132. Accordingly,
plaintiff is not entitled to relief on this issue.
Next, plaintiff argues that the trial court erred by dismissing plaintiff’s claims for
deprivation of rights under color of law.
“42 USC 1983 is the all-purpose federal civil rights statute, providing a remedy for
violations of the federal constitution and other federal law. A plaintiff must demonstrate that the
defendants, acting under color of state law, deprived it of a right secured by the constitution or
the laws of the United States.” Mettler Walloon, LLC v Melrose Twp, 281 Mich. App. 184, 195;
761 NW2d 293 (2008). With respect to determining whether the requisite state-action element
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has been satisfied, “[a] private actor acts under color of state law when its conduct is fairly
attributable to the state.” Moore v Detroit Entertainment, LLC, 279 Mich. App. 195, 203; 755
NW2d 686 (2008) (quotation marks and citation omitted).
The trial court in this case dismissed plaintiff’s § 1983 claims because defendant was not
a state actor. On appeal, plaintiff maintains that defendant was a state actor because her
appointment as personal representative gave her powers “by virtue of state law.” However,
plaintiff has cited no authority to support the proposition that a person is considered a state actor
for purposes of claims under § 1983 merely because that person has been appointed to be the
personal representative of an estate. Therefore, plaintiff has abandoned this issue on appeal.
“An appellant may not merely announce [her] position and leave it to this Court to discover and
rationalize the basis for [her] claims, nor may [she] give issues cursory treatment with little or no
citation of supporting authority.” Houghton v Keller, 256 Mich. App. 336, 339; 662 NW2d 854
(2003) (citations omitted).
Next, plaintiff argues that the trial court erred by dismissing her professional malpractice
claim. The trial court ruled that summary disposition was warranted because plaintiff and
defendant did not have an attorney-client relationship.
To establish a claim for legal malpractice, a plaintiff must show: (1) that there was an
attorney-client relationship; (2) that there was negligence in the legal representation provided to
the plaintiff; (3) that this negligence was a proximate cause of an injury; and (4) “the fact and
extent of the injury alleged.” Bowden v Gannaway, 310 Mich. App. 499, 503; 871 NW2d 893
(2015) (quotation marks and citation omitted). “Absent unique circumstances, an attorney is
only liable in negligence to [her] client.” Maki Estate v Coen, 318 Mich. App. 532, 539; 899
NW2d 111 (2017) (quotation marks and citation omitted).
In this case, plaintiff’s first amended complaint did not include any allegations that
plaintiff actually had an attorney-client relationship with defendant. Instead, plaintiff made the
vague allegation that she was a “beneficiary of certain fiduciary relationships entered into by
Defendant.” On appeal, plaintiff argues that her status as an intended third-party beneficiary of
an attorney-client relationship permits her to bring a claim of legal malpractice against
defendant. Plaintiff contends that as an heir, she “is not merely an intended third-party
beneficiary of Defendant’s appointment in representation of the estate, but a statutory third-party
beneficiary.” However, plaintiff has not cited any legal authority to support the proposition that
a person’s status as an heir automatically makes that person an intended third-party beneficiary
with the ability to assert a claim of legal malpractice against the attorney for the personal
representative of an estate. Therefore, plaintiff has abandoned her argument on appeal.
Houghton, 256 Mich. App. at 339. Even if we were to consider plaintiff’s arguments they are
devoid of merit.
Plaintiff’s final claims alleged that she was entitled to Joel’s house and unspecified
personal property inside of it. The trial court granted summary disposition on these claims
because it concluded that they were premised on plaintiff’s contention that she held a promissory
note and mortgage entitling her to Joel’s house and its contents, which was a position that the
trial court had “already rejected.”
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Plaintiff first argues that the trial court erred because it granted summary disposition on
these claims under MCR 2.116(C)(8) when its ruling was clearly based on the preclusive effect
of the court’s prior order in the other proceedings and should have been made under MCR
2.116(C)(7). Plaintiff is correct that MCR 2.116(C)(7) is the proper subrule for granting
summary disposition on this basis. See RDM Holdings, LTD v Continental Plastics Co, 281
Mich. App. 678, 687; 762 NW2d 529 (2008). However, the fact that the trial court relied on MCR
2.116(C)(8) rather than (C)(7) “makes no difference” because this Court “ordinarily affirms a
trial court’s decision if it reached the right result, even for the wrong reasons.” Wickings v Arctic
Enterprises, Inc, 244 Mich. App. 125, 150; 624 NW2d 197 (2000). Thus, plaintiff has not
demonstrated that she is entitled to any relief on the basis of this argument.
Next, plaintiff argues that the trial court erred by basing its decision on a prior rejection
of plaintiff’s position because, according to plaintiff, no such order or judgment exists rejecting
her right to enforce the promissory note and mortgage. However, plaintiff is incorrect. The trial
court’s order to this effect, which was entered in the consolidated estate and foreclosure
proceeding, is also contained in the record of the instant case as an attachment to defendant’s
motion for summary disposition.7 Plaintiff therefore also has not shown that the trial court erred
on this basis.
Finally, plaintiff asserts in conclusory fashion and without any analysis that she “retains
the right to move for amended pleadings.” Because plaintiff did not include any discussion or
argument related to this issue, it is abandoned. Houghton, 256 Mich. App. at 339.
Affirmed. Defendant having prevailed in full, is entitled to costs. MCR 7.219(A).
/s/ Jane E. Markey
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
7
When deciding a motion under MCR 2.116(C)(7), “this Court must consider not only the
pleadings, but also any affidavits, depositions, admissions, or other documentary evidence filed
or submitted by the parties.” RDM Holdings, 281 Mich. App. at 687.
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