Geraldine L Ivey v. Fred H Kaul Funeral Home Inc ( 2022 )

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
GERALDINE L. IVEY, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 358451
Macomb Circuit Court
FRED H. KAUL FUNERAL HOME, INC, LC No. 2021-001417-CZ
Defendant,
and
LAURA BERLIN,
Defendant-Appellee.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Plaintiff Geraldine Ivey appeals as of right the trial court’s order granting summary
disposition under MCR 2.116(C)(8) in favor of defendant Laura Berlin and dismissing Ivey’s
claims of conversion and intentional infliction of emotional distress (IIED). Ivey argues that the
trial court erred by granting Berlin’s motion for summary disposition, by denying Ivey’s motion
for reconsideration, and by denying Ivey’s request to amend her complaint. For the reasons set
forth in this opinion, we affirm.
I. FACTUAL BACKGROUND
This case involves a dispute among two sisters, Ivey and Berlin, following the death of
their mother, Marie Ilardo. In 2012, Ivey entered into a prearranged agreement with defendant
Kaul Funeral Home for Ilardo’s funeral services. Ilardo died in Macomb County on January 22,
2019, and Berlin organized the funeral arrangements. Ivey, who lived in Texas, alleged that Berlin
did not inform her about their mother’s death before making hurried funeral arrangements and
excluded her from involvement in carrying out their mother’s last wishes.
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In April 2021, Ivey filed suit against Berlin, raising claims of conversion and IIED. 1 For
the claim of conversion, Ivey alleged that Berlin wrongfully withheld and secretly retained 16
envelopes with monetary gifts left at the funeral, as well as Ilardo’s three yellow rings, rosary, and
other personal effects. For the IIED claim, Ivey stated that Berlin’s conduct surrounding the
funeral arrangements, as alleged throughout the complaint, was intentional, extreme, and
outrageous, and caused Ivey severe emotional distress.
Berlin moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing in
part that Ivey failed to state a claim of conversion and IIED. The trial court granted Berlin’s
motion under MCR 2.116(C)(8).2 The court held that Ivey failed to state a valid claim of
conversion because Ivey did not allege that she owned any of the items taken by Berlin. In
addition, the court dismissed the IIED claim, holding that Ivey’s allegations related to Berlin’s
conduct could not be characterized as extreme or outrageous.
Ivey moved for reconsideration, arguing that she sufficiently stated a claim of conversion
against Berlin. Ivey contended that she was a beneficiary of Ilardo’s estate, and that Berlin, by
wrongfully taking monetary gifts and personal effects, denied Ivey’s interest in this property. Ivey
also argued that the factual allegations involving Berlin’s extreme and outrageous conduct stated
a claim of IIED. Ivey stated, in the alternative, that the trial court should allow her an opportunity
to amend her complaint under MCR 2.116(I)(5).
The trial court denied Ivey’s motion for reconsideration. For the conversion claim, the trial
court found that Ivey failed to support her position that she had a property interest in the items
allegedly taken by Berlin. The trial court also stated that the IIED claim was properly dismissed
because Berlin’s alleged conduct could not be characterized as extreme or outrageous. Finally,
the trial court denied Ivey’s request to amend her complaint because Ivey failed to support her
request with any details on the claims she sought to add or amend. Ivey now appeals.
II. SUMMARY DISPOSITION
Ivey argues that the trial court erred by granting Berlin’s motion for summary disposition
and dismissing Ivey’s claims of conversion and IIED. We review a trial court’s decision on a
motion for summary disposition de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152,
159; 934 NW2d 665 (2019). De novo review means that we “review the legal issue independently”
and without deference to the trial court. Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d
805 (2019). In El-Khalil, 504 Mich at 159-160, the Supreme Court recited the legal standard for
reviewing a motion for summary disposition under MCR 2.116(C)(8):
1
Ivey also raised claims against Kaul Funeral Home, but they were dismissed by stipulation of the
parties.
2
The trial court did not specify whether it granted summary disposition under MCR 2.116(C)(8)
or (C)(10). We construe the trial court as having granting the motion on (C)(8) grounds because
the court’s opinion and order did not rely on evidence beyond the pleadings. See Krass v Tri-
County Security, Inc, 233 Mich App 661, 664-665; 593 NW2d 578 (1999).
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A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on
the factual allegations in the complaint. When considering such a motion, a trial
court must accept all factual allegations as true, deciding the motion on the
pleadings alone. A motion under MCR 2.116(C)(8) may only be granted when a
claim is so clearly unenforceable that no factual development could possibly justify
recovery. [Citations omitted.]
A. CONVERSION
Ivey argues that the trial court erred by concluding that she failed to state a claim of
conversion.3 Common-law conversion is “any distinct act of dominion wrongfully exerted over
another’s personal property in denial of or inconsistent with his right therein.” Aroma Wines &
Equip, Inc v Columbian Distribution Servs, Inc, 497 Mich 337, 346; 871 NW2d 136 (2015)
(quotation marks and citations omitted). Conversion is generally considered “an intentional tort
because the converter’s acts are willful, [but] one can also commit this tort while being unaware
of the plaintiff’s property interest.” Lawsuit Financial, LLC v Curry, 261 Mich App 579, 591; 683
NW2d 233 (2004). “Conversion may occur when a party properly in possession of property uses
it in an improper way, for an improper purpose, or by delivering it without authorization to a third
party.” Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich 1, 14; 779 NW2d 237 (2010).
When the plaintiff fails to allege facts establishing that the defendant wrongfully exercised control
over the property, the plaintiff fails to state a claim of common-law conversion. See Lawsuit
Financial, 261 Mich App at 591-592.
Ivey contends that Berlin wrongfully took items intended for Ilardo’s estate. As an equal
devisee of the estate, Ivey argues that Berlin’s actions denied Ivey her interest in these items.
Ivey’s complaint alleged that Berlin “wrongfully withheld” 16 envelopes with monetary
gifts, and Ilardo’s three yellow rings, rosary, and other personal effects. She also alleged that she
“did not give Defendant Berlin permission to accept or keep these items, and Defendant Berlin
otherwise did not have any right to retain them.” Missing from Ivey’s allegations is why Berlin
needed permission from Ivey to control these items. Ivey did not allege that these items were her
personal property. And crucially, nowhere in the complaint did Ivey allege that she was entitled
to the property as a devisee of Ilardo’s estate.4 Ivey mentioned Ilardo’s will for the first time in
3
Ivey’s complaint did not specify that the conversion claim was one of common-law conversion
rather than statutory conversion. We construe the complaint as raising a claim of common-law
conversion because Ivey does not cite MCL 600.2919a, the statutory conversion provision, or
otherwise suggest that she is raising a statutory claim.
4
We need not decide whether Ivey would have stated a claim of conversion had she made such an
allegation. Whether the property alleged to have been taken by Ivey became property of Ilardo’s
estate, and whether Ivey therefore had an interest in that property, are generally questions for a
probate court to first decide. But certainly the absence of allegations involving property of the
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her motion for reconsideration. But without amending her complaint to include allegations about
the will and its impact on Ivey’s entitlement to the property, the trial court could not consider this
information on a (C)(8) motion.5 See El-Khalil, 504 Mich at 159-160. We also cannot consider
the will, or Ivey’s status as a devisee, in deciding whether the trial court properly granted Berlin’s
motion for summary disposition under subrule (C)(8). Our review is limited to the complaint,
which does not allege that Ivey had a property interest in the items taken by Berlin as a beneficiary
of their mother’s estate. Instead, Ivey summarily stated that Berlin “wrongfully withheld” the
alleged items from Ivey because Berlin had no right to retain them. “A mere statement of a
pleader’s conclusions, unsupported by allegations of fact, will not suffice to state a cause of
action.” Lawsuit Financial, 261 Mich App at 592. Because Ivey did not allege facts establishing
that Berlin wrongfully exercised control over the disputed items, the trial court did not err by
dismissing Ivey’s claim of conversion under MCR 2.116(C)(8).
B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Next, Ivey asserts that the trial court erred by dismissing her IIED claim. “To establish a
prima facie claim of intentional infliction of emotional distress, the plaintiff must present evidence
of (1) the defendant’s extreme and outrageous conduct, (2) the defendant’s intent or recklessness,
(3) causation, and (4) the severe emotional distress of the plaintiff.” Walsh v Taylor, 263 Mich
App 618, 634; 689 NW2d 506 (2004). “Liability attaches only when a plaintiff can demonstrate
that the defendant’s conduct is so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a
civilized community.” Lewis v LeGrow, 258 Mich App 175, 196; 670 NW2d 675 (2003)
(quotation marks and citation omitted). “[M]ere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities” cannot support an IIED claim. Doe v Mills, 212 Mich App 73,
91; 536 NW2d 824 (1995). But where reasonable minds may differ on whether the defendant’s
conduct was extreme and outrageous, summary disposition is unwarranted. See Hayley v Allstate
Ins Co, 262 Mich App 571, 577; 686 NW2d 273 (2004).
The allegations against Berlin made by Ivey in her complaint do not rise to the level of
extreme and outrageous conduct. Ivey alleged that Berlin retained monetary gifts left by
individuals at their mother’s funeral and took some personal effects of their mother. While this
conduct could be considered unbecoming of a family member, reasonable minds could not
conclude that the conduct went “beyond all possible bounds of decency” and was “atrocious and
utterly intolerable in a civilized community.” See Lewis, 258 Mich App at 196. Nor do Ivey’s
allegations about Berlin’s planning and execution of the funeral arrangements create a question of
fact. For instance, one of Ivey’s most striking claims is that Berlin “provided beer and Fireball
shots for guests of their mother’s visitation.” Accepting this allegation as true, reasonable minds
again could not consider that allegation “atrocious and utterly intolerable in a civilized
estate—allegations that form the basis for Ivey’s argument on appeal—helps us to conclude that
Ivey failed to state a claim of conversion.
5
For reasons discussed later, the trial court did not abuse its discretion by denying Ivey’s
unsupported request to amend her complaint.
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community.” See Lewis, 258 Mich App at 196.6 Simply put, the conduct alleged by Ivey does not
meet the standard for extreme and outrageous conduct as defined by our caselaw; the allegations
are more reasonably considered oppressive conduct related to disagreement among family
members about the planning of their mother’s funeral and entitlement to certain items.
Examples from caselaw further show why the facts alleged by Ivey do not rise to the level
of extreme and outrageous conduct. In cases in which this Court has found questions of fact in
IIED claims, the alleged conduct was far more extreme and outrageous than the conduct alleged
here. See, e.g., Swain v Morse, 332 Mich App 510, 535-537; 957 NW2d 396 (2020) (unwanted
sexual touching); Lewis, 258 Mich App at 197-198 (secretly recorded consensual sexual activity);
Johnson v Wayne Co, 213 Mich App 143, 161-162; 540 NW2d 66 (1995) (juror in murder trial
held in contempt of court and placed in holding cell with the alleged murderer); Doe, 212 Mich
App at 91-93 (publicizing plaintiffs’ names and the fact of their abortions on large signs held up
outside clinic entrance). Unlike the examples in the cited cases, reasonable individuals could not
differ on whether Berlin’s alleged conduct was extreme and outrageous. The trial court did not err
by concluding that dismissal of the IIED claim was appropriate.
III. MOTION FOR RECONSIDERATION
Next, Ivey contends that the trial court erred by denying her motion for reconsideration.
We review a trial court’s decision on a motion for reconsideration for an abuse of discretion.
Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). An abuse of
discretion occurs when the trial court’s decision falls outside the range of principled outcomes. Id.
at 625.
MCR 2.119(F) governs motions for reconsideration and states in relevant part:
(3) Generally, and without restricting the discretion of the court, a motion
for rehearing or reconsideration which merely presents the same issues ruled on by
the court, either expressly or by reasonable implication, will not be granted. The
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.
Ivey’s motion largely presented the same arguments ruled on by the trial court in granting Berlin’s
motion for summary disposition. To the extent that Ivey raised new factual allegations in the
motion for reconsideration to sustain her claims, the trial court could not consider them in deciding
on a (C)(8) motion for summary disposition. See El-Khalil, 504 Mich at 159-160. Ivey did not
6
Had Ivey alleged, for example, that her mother’s express wishes were to have a solemn visitation
and service, we might view Berlin’s alleged conduct differently. But the allegation that Berlin
provided alcohol to guests does not establish extreme and outrageous behavior. Families differ
widely in the types of ceremonies they organize for relatives who have passed away—ranging
from mournful, subdued services to joyous, merry celebrations of life.
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establish that the trial court palpably erred by dismissing her claims against Berlin, and therefore
the trial court did not abuse its discretion by denying Ivey’s motion for reconsideration.
IV. AMENDMENT OF PLEADINGS
Lastly, Ivey argues that the trial court erred by denying her request to amend the complaint.
We review a trial court’s decision denying a motion to amend pleadings for an abuse of discretion.
Kostadinovski v Harrington, 321 Mich App 736, 742-743; 909 NW2d 907 (2017).
MCR 2.116(I)(5) provides that if the trial court grants summary disposition under subrule
(C)(8), “the court shall give the parties an opportunity to amend their pleadings as provided by
MCR 2.118, unless the evidence then before the court shows that amendment would not be
justified.” At the time Ivey requested an opportunity to amend her complaint, she could do so
“only by leave of the court or by written consent of the adverse party.” MCR 2.118(A)(2). “Leave
shall be freely given when justice so requires.” Id. Thus, “[a] motion to amend ordinarily should
be granted.” Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997). But a trial court may
deny a motion to amend a pleading for particularized reasons, which include undue delay and
futility. Kostadinovski, 321 Mich App at 743.
Fatal to Ivey’s argument is the fact that Ivey never filed a motion to amend her complaint.
Instead, in a single sentence at the end of her motion for reconsideration, she wrote that the trial
court should alternatively allow her an opportunity to amend the complaint under MCR
2.116(I)(5). Ivey did not attach any proposed amendments, nor did she explain whether she
intended to add claims or simply include additional factual allegations. As the trial court
accurately stated, Ivey “summarily requests permission to file an amended complaint without
providing any details as to what claim(s) she seeks to amend or add.” A trial court cannot
determine whether an amendment is futile, for instance, if the moving party does not reveal its
contents. We are similarly hampered on appeal. Not only that, but amendments “must be filed in
writing.” MCR 2.118(A)(4). When a plaintiff fails to offer a proposed amendment in writing,
“the plaintiff has failed to comply with the court rule and the trial court does not abuse its discretion
by denying the request to amend.” Twp of Grayling v Berry, 329 Mich App 133, 151-152; 942
NW2d 63 (2019). For those reasons, the trial court did not abuse its discretion by denying Ivey’s
request to amend the complaint.
V. CONCLUSION
The trial court did not err by granting Berlin’s motion for summary disposition, denying
Ivey’s motion for reconsideration, and denying Ivey’s request to amend the complaint. We affirm.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
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