Norman J Windsor Sr v. Norman J Windsor Jr ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
DIANA J. GRENIER and DANIEL A. UNPUBLISHED
WINDSOR, as Co-Conservators for NORMAN J. October 20, 2015
WINDSOR, SR., a legally incapacitated person,
Plaintiffs-Appellees,
v No. 321932
Mackinac Circuit Court
NORMAN J. WINDSOR, JR., LC No. 2012-007344-CH
Defendant-Appellant.
Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.
PER CURIAM.
Defendant, Norman J. Windsor, Jr., appeals as of right a trial court order denying his
motion for reconsideration of a trial court order setting aside two quitclaim deeds, under which
Norman J. Windsor, Sr. (“Norman Sr.”), transferred property to defendant and himself. We
affirm.
I. FACTUAL AND PROCEDURAL HISTORY
In November 2012, plaintiffs Diana J. Grenier and Daniel A. Windsor,1 who are siblings
as well as co-guardians and co-conservators of their father, Norman Sr., filed a complaint against
defendant, who is plaintiffs’ brother. The complaint alleged that the defendant fraudulently
induced 85-year-old Norman Sr. to execute two deeds that altered Norman Sr.’s ownership of
property, in defendant’s favor, at a time when Norman Sr. lacked the mental capacity to make
the transfers. The deeds were executed on November 7, 2011.
At a bench trial to determine whether Norman Sr. possessed the requisite mental capacity
to execute the deeds, Norman Sr.’s family physician testified that Norman Sr. undoubtedly
displayed signs of dementia in April 2011. Likewise, plaintiffs testified regarding multiple
incidents occurring before and after November 2011 that illustrated Norman Sr.’s progressive
1
Because several parties and witnesses share the last name “Windsor,” we will refer to them by
their first names. However, we will refer to defendant Norman J. Windsor, Jr., as “defendant.”
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dementia. Plaintiffs also introduced as evidence letters allegedly written by defendant to Central
Savings Bank in January 2011 and to Norman Sr.’s physician in March 2011.
In the letter to the bank, defendant asserted that his father lacked the requisite capacity to
contract when he signed the papers for a mortgage on a home purchased for Norman Sr.’s son,
John Windsor, in 2009. In the letter to Norman Sr.’s physician, defendant claimed that he had
observed Norman Sr. exhibit a “total loss of memory” and forget “complete situations and
details,” thereby implying that John had taken advantage of his father’s memory issues and
vulnerability, such that Norman Sr. was burdened with a mortgage on a house in which John
lived rent-free. Plaintiffs also presented evidence from a pleading in a lawsuit initiated by Soo
Co-op Credit Union against Norman Sr. and John for payment of a defaulted revolving loan on
which they were cosigners. In particular, the answer filed by Norman Sr. and John identified
defendant as Norman Sr.’s power of attorney and indicated that attorney Michael A. Kronk was
representing Norman Sr. specifically at the request of defendant. It also stated that, “to the
extent to which his Power of Attorney,” i.e., defendant, “can ascertain,” Norman Sr. “had a
diminished capacity to understand the nature of any transactions” as of August 2009, thereby
raising an affirmative defense of diminished capacity.
Contrary to plaintiffs’ testimony and the documentary evidence, defendant repeatedly
insisted at trial that he never thought that his father suffered from dementia. He said that his son,
Shawn Windsor, wrote the letters to the bank and the physician in order to help Norman Sr.
avoid liability on the mortgage and revolving loan when John stopped making payments on both.
Shawn confirmed his involvement in writing the letters in order to help Norman Sr., testifying
that he wrote the letter to Norman Sr.’s physician in order to garner support for Norman Sr.’s
affirmative defense of diminished capacity in the lawsuit filed by Soo Co-op Credit Union. He
admitted writing the letters in defendant’s name, forging defendant’s signature on the letter to the
bank, and simply putting the letter to the physician in front of defendant to sign. Shawn said he
did not believe anything in the letters, but wrote them because no one was doing anything to help
his grandfather get out from under his debt.
In addition to defendant and Shawn, defendant’s daughter, Stephanie Windsor, testified
that her grandfather showed no signs of dementia until he moved into an assisted living facility
in October 2012. Ron Meister, who assisted Norman Sr. and John with the 2009 mortgage, Amy
Radan, who was the branch manager at Norman Sr.’s credit union, and Lori Anderson, who
notarized the quitclaim deeds at issue, all stated, either at trial or in their deposition testimony
admitted at trial, that Norman Sr. appeared to know what he was doing whenever he interacted
with them. However, Radan and Meister remembered occasional incidents when Norman Sr.
exhibited memory problems or confusion during their interactions with him.
After observing the witnesses and weighing the evidence, the trial court declared the
deeds “a nullity,” concluding “that [d]efendant lack[ed] any substantial credibility” and that
Norman Sr. was either incompetent to prepare and execute the quitclaim deeds, or suffered from
dementia to such an extent that he was “vulnerable to prompting and interference by others.”
Defendant moved for reconsideration, claiming that plaintiffs’ bias against defendant’s character
had misled the court and that the court failed to properly consider the testimony of Meister,
Anderson, Radan, and Stephanie. The trial court denied defendant’s motion, but amended its
original order to instruct plaintiffs “to conform any deed reformation or [j]udgment to reflect that
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the deeds in question be held as any valid Will directs, or in the best interest of justice, given all
interested parties’ positions of inheritance.”
II. MOTION FOR RECONSIDERATION
First, defendant argues that the trial court erred in denying his motion for reconsideration.
We disagree.
A. STANDARD OF REVIEW
This Court reviews a trial court’s denial of a motion for reconsideration for an abuse of
discretion, which occurs when the trial court’s decision “fall[s] outside the range of principled
outcomes.” Corporan v Henton, 282 Mich. App. 599, 605-606; 766 NW2d 903 (2009). Pursuant
to MCR 2.119(F)(3), “[t]he moving party must demonstrate a palpable error by which the court
and the parties have been misled and show that a different disposition of the motion must result
from correction of the error.” A “palpable” error is an error “[e]asily perceptible, plain, obvious,
readily visible, noticeable, patent, distinct, manifest.” Luckow Estate v Luckow, 291 Mich. App.
417, 426; 805 NW2d 453 (2011) (quotation marks and citation omitted; alteration in original).
In general, a court will not grant a motion for reconsideration that presents the same issues that
were already decided by the court. MCR 2.119(F)(3). However, MCR 2.119(F)(3) does not
prevent a court from revisiting an issue on which the court previously ruled in order to correct a
mistake. Macomb Co Dep’t of Human Servs v Anderson, 304 Mich. App. 750, 754; 849 NW2d
408 (2014).
B. ANALYSIS
The trial court properly denied defendant’s motion for reconsideration because defendant
failed to identify a palpable error by which the trial court was misled. He alleged no error of law
in his motion for reconsideration. Instead, the only “palpable errors” identified by defendant
were related to the trial court’s findings of fact and unfavorable decision, which arose from the
trial court’s weighing of the evidence and credibility determinations. In particular, defendant
claimed in his motion for reconsideration that the trial court made its decision based on
plaintiffs’ misleading arguments and presentation of defendant, asserting that the court should
reconsider its decision in light of defendant’s third-party witnesses (i.e., Meister, Anderson,
Radan, and Stephanie), which, according to defendant, provided evidence that was more credible
than plaintiffs’ testimony that was uncorroborated by third-party witnesses. Likewise, in his
brief on appeal, defendant merely rehashes the testimony presented at trial in an attempt to
demonstrate that the trial court erred in concluding that the plaintiffs’ witnesses were more
credible than the defense witnesses, and that the trial court made its decision based on plaintiffs’
“misleading” representation of defendant’s character and motives.
A review of the record evidence reveals no palpable error related to the trial court’s
factual findings or credibility determinations. When witnesses testify to “diametrically opposed
assertions of fact,” it is the role of the trier of fact to determine the witnesses’ credibility.
Kalamazoo Co Rd Comm'rs v Bera, 373 Mich. 310, 314; 129 NW2d 427 (1964) (quotation marks
and citation omitted); see also In re Erickson Estate, 202 Mich. App. 329, 333; 508 NW2d 181
(1993) (“Where there is evidence pro and con [regarding an individual’s mental capacity], much
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weight should ordinarily be given to the conclusion reached by the probate judge, who has had
the opportunity of seeing and hearing the witnesses.”). Because plaintiffs and defendant
proffered contradictory evidence relevant to Norman Sr.’s capacity at the time the deeds were
executed, the trial court’s factual findings necessarily depended on its credibility determinations.
As explained infra, the trial court’s credibility determinations and factual findings were
supported by the evidence presented at trial, and there is no indication that the trial court’s
factual findings were erroneous, or the result of passion or bias, based on the lower court record.
See MCR 2.613(C) (“Findings of fact by the trial court may not be set aside unless clearly
erroneous. In the application of this principle, regard shall be given to the special opportunity of
the trial court to judge the credibility of the witnesses who appeared before it.”); Walters v
Snyder, 239 Mich. App. 453, 456; 608 NW2d 97 (2000) (stating that the findings of fact of a court
sitting without a jury are reviewed under the clearly erroneous standard). As such, the trial
court’s denial of defendant’s motion for reconsideration did not fall outside the range of
reasonable and principled outcomes, Corporan, 282 Mich. App. at 605-606, as defendant failed to
demonstrate a palpable error, MCR 2.119(F)(3).
III. GREAT WEIGHT OF THE EVIDENCE
Defendant also argues that the trial court’s ruling was against the great weight of the
evidence. We disagree.
A. STANDARD OF REVIEW
In general, a defendant must move in the trial court for a new trial on the basis that the
verdict was against the great weight of the evidence in order to preserve that claim for appeal.
Heshelman v Lombardi, 183 Mich. App. 72, 83; 454 NW2d 603 (1990). See also MCR
2.611(A)(1)(e) (stating that a new trial may be granted when a decision was against the great
weight of the evidence); MCR 2.611(B) (stating that motion under MCR 2.611 must be filed and
served within 21 days after entry of the judgment). Additionally, this Court has held that a party
waives a claim that the verdict was against the great weight of the evidence when he fails to
move for a new trial on that basis in the trial court. See, e.g., Rickwalt v Richfield Lakes Corp,
246 Mich. App. 450, 464; 633 NW2d 418 (2001); Brown v Swartz Creek Mem Post 3720-
Veterans of Foreign Wars, Inc, 214 Mich. App. 15, 27; 542 NW2d 588 (1995). However, if a
case is tried without a jury, a party need not move for a new trial in the trial court in order to
preserve a claim that the verdict was against the great weight of the evidence. MCR
7.211(C)(1)(c); see People v Ratcliff, 495 Mich. 876; 838 NW2d 687 (2013) (“Because this was a
bench trial, the defendant was not required to file a motion to remand to preserve this issue
[regarding whether his conviction was against the great weight of the evidence]. MCR
7.211(C)(1)(c).”).2
2
A Michigan Supreme Court order may constitute binding precedent to the extent that it can be
understood as presenting a holding that is based on discernible facts and reasoning. Dykes v
William Beaumont Hosp, 246 Mich. App. 471, 483; 633 NW2d 440 (2001). Additionally, other
unpublished decisions issued by this Court in civil cases have restated this preservation rule, see,
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When a bench trial verdict is challenged on the basis that the verdict was against the great
weight of the evidence, we review the trial court’s findings of fact for clear error and its
conclusions of law de novo. Alan Custom Homes, Inc v Krol, 256 Mich. App. 505, 512; 667
NW2d 379 (2003), citing MCR 2.613(C); see also Ambs v Kalamazoo Co Rd Comm’n, 255 Mich
App 637, 652 n 14; 662 NW2d 424 (2003). “A finding is clearly erroneous when, although there
is evidence to support it, the reviewing court on the entire record is left with a definite and firm
conviction that a mistake was made.” Marilyn Froling Revocable Living Trust v Bloomfield
Hills Country Club, 283 Mich. App. 264, 296; 769 NW2d 234 (2009) (quotation marks and
citation omitted).
B. ANALYSIS
As stated supra, the trial court’s credibility determinations and findings of fact—most
significantly, that Norman Sr. lacked the requisite capacity to execute the deeds—were supported
by evidence presented at trial and were not clearly erroneous. To execute a valid deed, a grantor
must have “sufficient mental capacity to understand the business in which he was engaged, to
know and understand the extent and value of his property, and how he wanted to dispose of it,
and to keep these facts in his mind long enough to plan and effect the conveyances in question
without prompting and interference from others.” Persinger v Holst, 248 Mich. App. 499, 503-
504; 639 NW2d 594 (2001) (quotation marks and citation omitted); see also In re Erickson
Estate, 202 Mich. App. at 332-333. “Where insanity or mental incompetency is claimed, it should
be proved by a preponderance of the evidence.” In re Erickson Estate, 202 Mich. App. at 333.
Although “[l]ack of capacity to execute a deed at a particular time may be proved by the
grantor’s condition before and after that time, and that prior or subsequent condition may be
presumed to exist at the time the deed was made,” Beattie v Bower, 290 Mich. 517, 525; 287 N.W.
900 (1939), the decedent’s capacity at the time of the execution of the instrument is the relevant
inquiry. As such, the presumption that a grantor’s prior or subsequent condition existed at the
time the deed was executed is not applicable if there is credible evidence of the grantor’s
physical and mental condition at the time of the execution of the deed, Burmeister v Russell, 362
Mich. 287, 289-290; 106 NW2d 752 (1961), or if “convincing, disinterested and unimpeached
testimony shows adequate capacity at the time of execution,” Fish v Stilson, 352 Mich. 437, 440-
441; 90 NW2d 509 (1958).
Our review of the record confirms that plaintiffs presented considerable evidence
regarding Norman Sr.’s condition before and after his execution of the quitclaim deeds to show
that he suffered from progressive dementia. The incidents culminate in the spring of 2012, when
Norman Sr. inexplicably spent 24 hours in a canoe, naked, resulting in his hospitalization. The
probate court named plaintiffs co-guardians and co-conservators of Norman Sr. in July 2012.
Unable to live alone, he moved into an assisted living facility in October 2012. These incidents
e.g., McCalvin v City of Detroit, unpublished opinion per curiam of the Court of Appeals, issued
December 13, 2002 (Docket No. 236973), p 2, and the Michigan Supreme Court recently
amended MCR 7.211(C)(1)(c), effective September 1, 2015, to clarify this rule, Administrative
Order No. 2013-35. See Reitmeyer v Schultz Equip & Parts Co, Inc, 237 Mich. App. 332, 337-
338; 602 NW2d 596 (1999) (discussing the retroactivity of court rule amendments).
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suggest a condition that may reasonably be presumed to have existed at the time he executed the
deeds.
In contrast, defendant, Shawn, and Stephanie maintained that Norman Sr. did not show
signs of diminished capacity prior to the execution of the quitclaim deeds. Similarly, Anderson,
Radan, and Meister, all of whom interacted with Norman Sr. in a limited capacity, testified that
Norman Sr. appeared to know what he was doing when he interacted with them. However,
Radan and Meister both confirmed that Norman Sr. occasionally displayed memory issues or
confusion during their interactions, and Shawn, Stephanie, Meister, and Radan had no
involvement in the execution of the deeds in November 2011. Further, because none of the
disinterested or third-party testimony constituted credible, or “convincing, disinterested and
unimpeached,” evidence regarding Norman Sr.’s capacity at the time the deeds were executed,
the court was permitted to presume that Norman Sr.’s prior or subsequent condition existed at the
time of execution. See Burmeister, 362 Mich. at 290; Fish, 352 Mich. at 440-441. In fact, the
only disinterested or third-party evidence of Norman Sr.’s capacity at the actual time of
execution was provided by Anderson,3 and her testimony was not sufficiently convincing on its
own to demonstrate that Norman Sr. had the requisite mental capacity under Persinger, 248
Mich. App. at 503-504. Anderson only minimally conversed with Norman Sr., and she
acknowledged that she did not discuss with Norman Sr. the content of the deeds that she was
notarizing, Norman Sr.’s other assets, or the impact of the conveyances on Norman Sr.’s estate.
Instead, she simply performed the notarization after Norman Sr. stated that he had two deeds that
needed to be signed. Likewise, her deposition testimony indicates that her assessment of
Norman Sr.’s understanding of the transaction was solely based on his demeanor as he signed the
documents, which provides very minimal evidence regarding whether Norman Sr. actually
understood the business in which he was engaged, was actually cognizant of the extent and value
of his property, and actually appreciated the manner in which he was disposing of it.
Therefore, in considering the entire record, and being mindful of the trial court’s superior
ability to assess the credibility of the witnesses, Ambs, 255 Mich. App. at 652, we conclude that
the trial court’s finding that Norman Sr. lacked the requisite mental capacity to validly execute
the deeds in November 2011 was not clearly erroneous. Accordingly, we reject defendant’s
claim that the trial court’s ruling was against the great weight of the evidence. Alan Custom
Homes, 256 Mich. App. at 512.
IV. EVIDENTIARY RULING
Lastly, defendant contends that the trial court erred by excluding evidence regarding
plaintiffs’ compensation from Norman Sr.’s estate for the conservator services that they
performed for the estate, which, according to defendant, demonstrated plaintiffs’ bias or
3
Defendant also testified regarding Norman Sr.’s capacity at the time of execution, but he is
obviously not disinterested in this case, and his testimony was deemed completely incredible by
the trial court judge. We must defer to the trial court’s credibility determinations. Ambs, 255
Mich. App. at 652 (“An appellate court will give deference to “the trial court's superior ability to
judge the credibility of the witnesses who appeared before it.”).
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pecuniary interest in the case. As such, defendant argues that the court’s exclusion of the
evidence denied him the opportunity to impeach plaintiffs’ credibility. We disagree.
A. STANDARD OF REVIEW
“[T]he decision to admit or exclude evidence is within the discretion of the trial court,
and this Court will not disturb the ruling on appeal in the absence of an abuse of discretion.”
Taylor v Mobley, 279 Mich. App. 309, 315; 760 NW2d 234 (2008).
B. ANALYSIS
Defendant’s claim of error arises from the following exchange at trial:
[Defense Counsel]: And you and the co-conservator have filed an
inventory and an accounting in that case?
[Plaintiff Daniel]: Yes.
[Plaintiffs’ Counsel]: Wherein you have billed your father’s estate $35 an
hour for the services that you provide to him, correct?
[Plaintiffs’ Counsel]: Your Honor--
[Plaintiff Daniel]: That’s a different issue but--
[Plaintiffs’ Counsel]: I’m going to object to the rele--
[Plaintiff Daniel]: But--
The Court: Hang on.
[Plaintiffs’ Counsel]: Relevancy.
The Court: Hang on. Hang on.
[Plaintiff Daniel]: Um--
The Court: Sir! Sir! There’s an objection, and where there is an
objection, you need to stop talking and let the attorney talk. Okay?
[Plaintiffs’ Counsel]: But my objection is to relevancy. The--you know,
this case is about the, the mental capacity of Mr. Windsor, Senior. I don’t know
what this has to do with anything. Maybe with an explanation I’d withdraw the
objection.
The Court: Is there some foundation for it? Because I would tend to
agree.
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[Defense Counsel]: Concern being that, that this asset returned to the
estate is simply going to be consumed for services that children should be
providing without cost, without charge.
The Court: You’re saying the $35 an hour that is charged for whatever
services are going to dissipate the estate, is that what I understand?
[Defense Counsel]: Eventually. Yes.
The Court: And that’s the sole purpose of eliciting?
[Defense Counsel]: It is.
The Court: All right. Let’s move on.
[Defense Counsel]: All right.
As plaintiffs observe on appeal, it is unclear whether the trial court sustained the
objection or accepted as true the fact that plaintiff Daniel billed Norman Sr.’s estate $35 per hour
for his services. Nevertheless, “it is always permissible upon cross-examination of an adverse
witness to pursue facts that may bear on a witness’s bias. A witness’s credibility is a primary
question for the [factfinder] to evaluate, and questions eliciting bias, prejudice, or interest are
appropriately allowed within the trial court’s discretion.” Detroit/Wayne Co Stadium Auth v
Drinkwater, Taylor, & Merrill, Inc, 267 Mich. App. 625, 653; 705 NW2d 549 (2005) (citations
omitted); see also Powell v St John Hosp, 241 Mich. App. 64, 72-74; 614 NW2d 666 (2000)
(“Evidence that shows bias or prejudice on the part of a witness is always relevant.”). However,
even if we assume, arguendo, that the trial court’s exclusion of the evidence was erroneous, the
error was harmless.
We deem an error harmless if the error is not decisive to the outcome of a case. See
Ypsilanti Fire Marshal v Kircher, 273 Mich. App. 496, 529; 730 NW2d 481 (2007), lv gtd in part
480 Mich. 910 (2007); see also MCR 2.613(A) (stating that an error in the exclusion of evidence
does not justify reversal or disturbance of a judgment unless refusing to take such action would
be inconsistent with substantial justice). In light of the trial court’s response (“All right. Let’s
move on.” [Emphasis added.]), it is apparent that the trial court was aware of the theory of bias
presented by defendant. As such, we reject defendant’s claim that the trial court’s exclusion of
the testimony “stifled [defendant’s] case” and prevented defendant from impeaching plaintiff
Daniel’s credibility and demonstrating that plaintiff Daniel’s purported bias undermined his
trustworthiness. Moreover, defendant never asserted that the compensation was exorbitant; he
only argued that plaintiff Daniel should have inventoried the estate free of charge because
Norman Sr. is his father. However, plaintiff Daniel, as a conservator, was entitled to such
payments pursuant to MCL 700.5413 (“If not otherwise compensated for services rendered, a
visitor, guardian ad litem, attorney, physician, conservator, or special conservator appointed in a
protective proceeding, is entitled to reasonable compensation from the estate.”), and we are
unable to locate any authority indicating that an exception to that entitlement exists for family
members. As such, it is apparent that defendant’s reliance on compensation from the estate as an
indication of bias was tenuous at best. Given the trial court’s strongly worded findings regarding
defendant’s lack of credibility, we find it extremely unlikely that further evidence regarding the
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compensation that plaintiff Daniel received from the estate would have altered the trial court’s
credibility determination and affected the outcome of the trial. Thus, the trial court’s exclusion
of the evidence was harmless and does not justify reversal.
V. CONCLUSION
The trial court properly denied defendant’s motion for reconsideration, and the trial
court’s conclusion that Norman Sr. lacked the requisite capacity to execute the deeds was not
against the great weight of the evidence. Likewise, the trial court’s exclusion of evidence
regarding the compensation that plaintiff Daniel received from Norman Sr.’s estate does not
require reversal.
Affirmed.
/s/ Jane E. Markey
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan
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