in Re Brown Estate

STATE OF MICHIGAN

COURT OF APPEALS

BILL and DENA BROWN TRUST, by MARK FOR PUBLICATION

BROWN, Trustee, October 20, 2015

9:00 a.m.

Plaintiff-Appellant,

v No. 322401

Montmorency Circuit Court

GERI GARCIA, LC No. 13-003254-CH

Defendant-Appellee.

In re Estate of BILLIE MAX BROWN.

MARK BROWN,

Appellant,

v No. 322402

Montmorency Probate Court

GERI GARCIA, LC No. 13-007003

Appellee.

Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

In these consolidated cases involving an action to quiet title in Docket No. 322401 and a

will contest in Docket No. 322402, plaintiff Mark Brown appeals by right the trial court’s order

granting defendant Geri Garcia summary disposition with respect to plaintiff’s claim that the

trust agreement did not authorize the trustee’s deed at issue. Plaintiff also appeals by right the

trial court’s order granting summary disposition with respect to plaintiff’s claim of undue

influence. For the reasons discussed in this opinion, we affirm.

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I. SUMMARY OF FACTS AND PROCEEDINGS

Bill Brown (Bill) and Dena Brown (Dena) established an irrevocable trust as part of their

estate planning that was intended to distribute their assets to various beneficiaries after both had

died. After Dena passed away, Bill became the sole trustee of the trust. Bill, as trustee,

conveyed the marital home that was a trust asset to himself by means of a “Lady Bird” quitclaim

deed,1 which provided that the property would pass to defendant Geri Garcia on his death if Bill

did not otherwise dispose of the property during his lifetime. Bill did not otherwise dispose of

the property before his death. Plaintiff Mark Brown , the successor trustee, asserts that Bill did

not have the authority to convey the property to himself after Dena died because doing so was

contrary to the intent of the trust that the property pass to the trust beneficiaries after the death of

both original settlors. According to plaintiff, the “Lady Bird” deed, in essence, partially revoked

an irrevocable trust. Plaintiff argues in his first issue that the trial court erred by ruling the terms

of the trust permitted Bill’s action.

Plaintiff argues in his second issue that defendant Geri Garcia was in a fiduciary

relationship with Bill and exercised undue influence over Bill with respect to executing the

“Lady Bird” deed. Plaintiff asserts that the trial court erred by granting defendant summary

disposition regarding his undue influence claim because questions of material fact remain.

On June 8, 2007, Bill and Dena as husband and wife created the Living Trust Agreement

of Bill M. Brown and Dena G. Brown (the trust). Bill and Dena also executed, on the same day,

identical wills that provided for transfer of property to the trust, or if the testator’s spouse did not

survive and the trust no longer existed, then specific distribution provisions mirrored those of the

trust. A year later, on June 11, 2008, Bill and Dena exercised their authority under the terms of

the trust by amending it and their wills to alter the named beneficiaries. These amendments did

not alter the terms of the trust at issue in this appeal.

On February 28, 2008, Bill and Dena acquired the subject property located at 10395

South Airport Road, Avery Township, Montmorency County, for $180,000. The former owners2

conveyed the property by warranty deed to Bill and Dena as trustees of the trust. The Browns,

because Dena had cancer, moved to this home to be closer to Bill’s former daughter-in-law,

Eunice Ruth Dahn (Ruth), who was a caregiver for both. Dena died on August 10, 2008.

1

“It is named after Lady Bird Johnson, because allegedly President Johnson once used this type

of deed to convey some land to Lady Bird.” In re Tobias Estate, unpublished opinion per curiam

of the Court of Appeals, issued May 10, 2012 (Docket No. 304852), op at 5 (citation omitted). A

“Lady Bird” quitclaim deed conveys an enhanced life estate that reserves to the grantor “the

rights to sell, commit waste, and almost everything else[.] Id. See also Black’s Legal Dictionary

(10th ed), defining a “Lady Bird” deed as “[a] deed that allows a property owner to transfer

ownership of the property to another while retaining the right to hold and occupy the property

and use it as if the transferor were still the sole owner.”

2

One of the property’s former owners was Yvonne Currie, who came to know the Browns as

customers at the bank where she worked.

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Defendant Geri Garcia was born in California on April 22, 1983, and immediately placed

for adoption. In October 2009, Garcia was contacted by her birth mother, Pam Altz, who

informed Garcia that her natural father was John Brown, the brother of Bill. Thereafter, Garcia

contacted John, who rejected Garcia’a assertion that he was her natural father and also refused to

provide a genetic sample for the purpose of testing.

At some point, Altz provided Garcia’s telephone number to Bill, and he called Garcia.

After Garcia wrote Bill a letter about herself and her family on August 19, 2010, Bill and Garcia

regularly communicated by telephone and mail. In June 2011, Garcia flew from California to

Michigan and visited Bill at his home. On January 12, 2012, Bill submitted genetic material for

testing and comparison to samples from Garcia. The test results excluded Bill as being the

possible father of Garcia but concluded that the probability the two were related was 97.7%, and

that the “likelihood that the alleged relative is the biological relative of the tested child is 43 to

1.” Bill apparently provided the test results to John, who responded in a March 8, 2012 letter

indicating he thought that the information showed that Bill was Garcia’s real father.

In February 2012, Garcia traveled from California to Michigan for her second visit with

Bill. On February 10, 2012, Bill and Garcia went to a local branch of PNC Bank, where Bill

added Garcia as a joint owner with rights of survivorship to various accounts. Bill and Garcia

then went to the office of attorney Benjamin Bolser; Eunice Ruth Dahn joined Bill and Garcia at

Bolser’s office. Bill had previously consulted with Bolser and various documents were ready for

signature. Geri Garcia, and if unable to serve, Eunice Ruth Dahn, were named as Bill’s attorney-

in-fact (durable power of attorney); Garcia and Dahn were similarly appointed as Bill’s patient

advocate (durable power of attorney for health care). Bill executed a last will and testament that

(1) disinherited his two children and their children, (2) devised and bequeathed all the residue of

his estate to Geri Garcia, and (3) appointed Geri Garcia the personal representative of his estate.

Bill also signed a living will that directed the withholding of medical treatment in certain

circumstances. Finally, Bill, as the sole surviving settlor-trustee, conveyed the Airport Road

property to himself as an individual via a “Lady Bird” quitclaim deed that would pass the

property to Geri Garcia if Bill did not otherwise dispose of it during his lifetime.

After February 2012, Garcia accompanied by various members of her family, visited Bill

for short periods of no more than 5 days in March, April, August, and October 2012. John

Brown continued to disbelieve Garcia’s claim of paternity. He wrote to his brother Bill on

October 31, 2012, and admonished Bill to not give anyone his cell phone number: “I’m not going

to be called and harassed anymore by all those so called kids of mine who read about me and are

after my money . . . .” Mark Brown, John’s son, became the successor trustee of the Bill and

Dena Brown trust after Bill passed away on January 16, 2013.

Mark Brown, as successor trustee, filed an action in circuit court on February 1, 2013 to

quiet title in the trust to Airport Road property (Docket No. 322401; LC No. 13-003254-CH).

This case requested that the “Lady Bird” deed be declared null and void because it was in

contradiction to the terms of trust. Defendant Garcia filed an answer on March 1, 2013, denying

that the deed was contrary to the terms of the trust. In later proceedings, plaintiff developed his

alternative theory that Garcia used undue influence to cause Bill to execute the deed. This case

was assigned to Circuit Judge Michael G. Mack.

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On March 8, 2013, Garcia, as Bill’s nominated personal representative in his February

10, 2012 will, filed a petition in probate court for formal appointment as personal representative

and for determination of heirs (Docket No. 322402; LC-13-007003-DE). Mark Brown appeared

by counsel on March 25, 2013. At a hearing held on April 4, 2013 before Probate Judge

Benjamin Bolser, the parties stipulated to the entry of an order maintaining the status quo. Judge

Bolser, because of his prior involvement as an attorney and witness to the matters in controversy,

disqualified himself from hearing the matter. The State Court Administrator assigned this case

to Circuit Court Judge Mack. On April 22, 2013, Mark Brown filed a petition contesting probate

of the February 10, 2012 will on the basis that it was the product of undue influence and sought

instead to probate Bill Brown’s June 11, 2008 will. On May 13, 2013, the parties and Judge

Mack agreed to consolidate the two actions.

In June 2013, Mark Brown moved for summary disposition pursuant to MCR 2.116(C)(9)

and (10), and Geri Garcia responded with her own motion for summary disposition under MCR

2.116(I). Judge Mack held a hearing on the motions on July 15, 2013. The trial court took the

motions under advisement and subsequently issued an opinion and order on August 8, 2013,

granting in part Garcia’s motion and denying Mark Brown’s motion. The trial court concluded

the terms of the trust authorized Bill Brown as the surviving settlor-trust to execute the “Lady

Bird” deed. In particular, the trial court relied on Article VII of the trust, which provided that

“[d]uring Settlor’s lifetime, however, Settlor may direct Trustee with respect to any matter

concerning the . . . distribution . . . of trust assets.” Although Article II prohibited the surviving

settlor from revoking or amending the trust in any way, the court found persuasive that Article

VII powers referred to a singular settlor. Thus, the court ruled that “[w]hen [Bill] Brown

executed the Lady Bird deed on February [10], 2012 he was properly acting under the authority

granted to him in Article VII. Additionally, Section 7.10 allowed him, as trustee, to ‘deal in real

property . . . without regard to the duration of such interest.’”

The undue influence claim, however, remained pending, and following further discovery,

defendant Geri Garcia moved for summary disposition regarding that claim. After the parties

presented oral arguments and further briefing, the trial court issued an opinion and order on May

8, 2014, granting defendant Garcia’s motion. The trial court relied primarily on the deposition of

bank employee Yvonne Currie, who assisted Bill Brown in making Garcia a joint owner of

various accounts, and the testimony of then attorney Benjamin Bolser, who drafted and

witnessed the various documents executed at his office on February 10, 2012. The trial court

ruled that “all of the testimony supports the conclusion that Bill Brown was acting of his own

volition and not subject to any undue influence [and that plaintiff] has presented no evidence to

the contrary.” The trial court also rejected consideration of a presumption of undue influence

because “the evidence has not demonstrated a confidential or fiduciary relationship between Geri

Garcia and Bill Brown.” The trial court entered an opinion and order denying plaintiff’s motion

for reconsideration on June 5, 2014. Plaintiff Mark Brown now appeals by right.

II. THE TRUST

A. STANDARD OF REVIEW

This Court reviews de novo the trial court’s grant or denial of a motion for summary

disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion under

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MCR 2.116(C)(10) tests the factual sufficiency of a claim and must be supported by affidavits,

depositions, admissions, or other documentary evidence, the substance or content of which

would be admissible at trial. Id. at 120-121; Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681

NW2d 342 (2004). The court must view the proffered evidence in the light most favorable to the

party opposing the motion. Maiden, 461 Mich at 120. A court should grant the motion when the

submitted evidence fails to establish any genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Brown v Brown, 478 Mich 545, 552; 739 NW2d 313

(2007). “A genuine issue of material fact exists when the record, giving the benefit of reasonable

doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”

West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When the undisputed

evidence shows that any party is entitled as a matter of law, the court may enter judgment for

that party. MCR 2.116(I)(1) and (2); In re Baldwin Trust, 480 Mich 915; 739 NW2d 868 (2007).

The interpretation of a trust agreement is also a question of law reviewed de novo on

appeal. In re Herbert Trust, 303 Mich App 456, 458; 844 NW2d 163 (2013). “A court must

ascertain and give effect to the settlor’s intent when resolving a dispute concerning the meaning

of a trust.” Id. The settlor’s intent is ascertained by looking to the words of the trust itself. In re

Perry Trust, 299 Mich App 525, 530; 831 NW2d 251 (2013). If the trust’s terms are ambiguous,

a court may look outside the document to determine the settlor’s intent, and consider the

circumstances surrounding the creation of the trust and the general rules of construction. In re

Kostin Estate, 278 Mich App 47, 53; 748 NW2d 583 (2008). The fact that litigants disagree

regarding the meaning of a trust, however, does not mean that it is ambiguous. See Detroit

Wabeek Bank & Trust Co v City of Adrian, 349 Mich 136, 143; 84 NW2d 441 (1957) (noting

litigants espousing different positions regarding the proper interpretation of a will did not render

its terms ambiguous); In re Reisman Estate, 266 Mich App 522, 527; 702 NW2d 658 (2005)

(“The rules of construction applicable to wills also apply to the interpretation of trust

documents.”). A court must also read a trust as a whole, harmonizing and giving effect to all its

terms, if at all possible. In re Raymond Estate, 483 Mich 48, 52; 764 NW2d 1 (2009). In sum, a

court must enforce the plain and unambiguous terms of a trust as they are written. Id.; In re

Reisman Estate, 266 Mich App at 527.

B. DISCUSSION

The trust’s plain terms authorize a settlor serving as trustee to engage in self-dealing and

also plainly authorize a settlor to direct the trustee “with respect to any matter concerning the

administration, [or] distribution . . . of trust assets.” The trust further authorizes the trustee to

“[m]ake distribution or division of trust assets in cash or in kind,” to “deal in real property, or

any interest therein, as Trustee deems appropriate and without regard to the duration of such

interests,” and to “[e]xecute and deliver an instrument that accomplishes or facilitates the

exercise of a power vested in Trustee.” Consequently, the trial court correctly ruled that the trust

granted Bill Brown as the surviving settlor-trustee the authority under Article VII to execute the

February 10, 2012 “Lady Bird” deed quitclaiming the Airport Road property to himself, with a

remainder to Geri Garcia. Further, the trial court correctly ruled that the conveyance did not alter

or amend any part of the trust. Thus, the trial court properly granted defendant summary

disposition regarding plaintiff’s action to quiet title with respect to the Airport Road property.

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Plaintiff’s arguments to the contrary lack merit. First, plaintiff asserts that the February

10, 2012 quitclaim deed is contrary to the purpose of the trust to distribute the trust’s assets to

various named beneficiary after the death of both settlors. While plaintiff contends that the

quitclaim deed effectively modified or partially revoked the trust, this is simply not true as the

trust’s terms remain unchanged from the time that Bill Brown and Dena Brown last jointly

amended it. While the quitclaim deed clearly diminishes the amount of property subject to

distribution according to its terms, the trust itself was not modified. Nevertheless, plaintiff

asserts, without citation to any provision in the trust, that “neither Bill Brown nor Dena Brown

could unilaterally remove” the Airport Road property from the trust. But plaintiff fails to cite

any authority to support his argument that when a married couple establishes an estate plan that

includes a trust, the surviving settlor/trustee is precluded from transferring property from the

trust even if doing so is within the discretion vested in the settlor or trustee by the terms of the

trust document. “An appellant may not merely announce his position and leave it to this Court to

discover and rationalize the basis for his claims.” In re Temple Marital Trust, 278 Mich App

122, 139; 748 NW2d 265 (2008). “And, where a party fails to cite any supporting legal authority

for its position, the issue is deemed abandoned.” Prince v MacDonald, 237 Mich App 186, 197;

602 NW2d 834 (1999).

Plaintiff also posits that because Bill Brown and Dena Brown could have taken title to the

Airport Road property as joint tenants with rights of survivorship but instead took title to the

property as co-trustees they intended the property to remain in the trust. This argument is

unavailing. What the settlors might have, but did not do, does not establish the settlors’ intent

with respect to the trust. Rather, the plain terms of the trust establish the settlors’ intent. In re

Raymond Estate, 483 Mich at 52; In re Reisman Estate, 266 Mich App at 527. As discussed

already, the terms of the trust plainly accord the surviving settlor/trustee broad authority to

engage in self-dealing, to distribute trust asset in cash or kind, to deal in real estate, and to

execute such instruments on such terms as the trustee deems appropriate. The trustee’s exercise

of these powers that has the effect of diminishing trust assets available for distribution after the

death of the last surviving settlor is nowhere prohibited by the terms of the trust. This is not an

absurd result, as plaintiff argues, but one the settlors plainly contemplated. Paragraph 4.2 of the

trust provides that the trustee may “pay to Settlors or apply for Settlors’ benefit amounts of

principal (even to the exhaustion of the trust) as Trustee, in Trustee’s discretion, deems necessary

or advisable to maintain Settlors’ customary standard of living.” While this provision does not

specifically authorize the quitclaim deed at issue, it demonstrates that the trust was first and

foremost drafted for the settlors’ benefit during their lifetimes. It provides no guarantee that

“other” beneficiaries under Article V would receive any distribution after the death of the last

surviving settlor.

Moreover, in a similar context of a married couple’s estate plan, this Court has rejected

imposing restrictions on the surviving spouse’s ability to dispose of the couple’s property after

the death of a spouse unless the estate planning documents specifically impose restrictions. In re

Leix Estate, 289 Mich App 574, 590-591; 797 NW2d 673 (2010). The Leix case concerned an

agreement to make mutual wills that would provide on the death of the survivor all of the

survivor’s property would go into a trust for a granddaughter for her life and on the

granddaughter’s death, the remainder would be divided into three equal shares for the

granddaughter’s issue and two other heirs or their issue. Id. at 578. After the death of his

spouse, the survivor transferred nearly all his assets into accounts held jointly with the

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granddaughter and also transferred real estate to himself and the granddaughter as joint tenants

with survivorship rights. Id. at 576. “One of the effects of the transfers was to divest the trust of

assets that the contingent trust beneficiaries might have received upon [the granddaughter’s]

death.” Id. at 578. The other heirs brought an action to impose a constructive trust, contending

that the survivor’s lifetime transfers violated the agreement to execute mutual wills. The trial

court granted summary disposition to the granddaughter because “nothing in the agreement put

any restrictions on what the surviving party could do with the parties’ assets;” therefore, the asset

transfers did not breach the agreement. Id. at 577.

On appeal, this Court first held that the agreement to execute mutual wills was valid and

became binding on the death of the first spouse. Id. 578-579, citing Schondelmayer v

Schondelmayer, 320 Mich 565, 572; 31 NW2d 721 (1948). However, the mutual will agreement

did not apply to specific property and did not restrict the survivor’s ability to dispose of property

during the survivor’s lifetime. After surveying conflicting case law from other jurisdictions, the

Court rejected the “appellant’s invitation to recognize implied limitations on the transfer of

assets by the surviving spouse in the case of an agreement to make mutual wills.” In re Leix

Estate, 289 Mich App at 590. The Court reasoned that “[a]n unambiguous contract must be

enforced according to its terms.” Id., quoting Burkhardt v Bailey, 260 Mich App 636, 656-657;

680 NW2d 453 (2004). Further, courts must enforce an agreement as written absent an unusual

circumstance, such as the contract violating the law or because it is contrary to public policy. Id.

at 590-591. The Leix Court held that these contract principles applied to the contract to make a

mutual will. Consequently, the Court held that “[r]egardless of whether the [survivor’s asset]

transfers were made for the purpose of avoiding the testamentary disposition, the agreement did

not restrict [the survivor] from disposing of the assets as he saw fit.” Id. at 591.

In the present case, nothing in the trust or other testamentary documents restricted the

surviving settlor-trustee from disposing of trust assets as the surviving settlor-trustee deemed

appropriate. Indeed, the trust specifically authorized Bill, as the surviving settlor-trustee, to

engage in self-dealing, to distribute trust assets in cash or kind, to deal in real estate, and to

execute any instruments as the trustee considered appropriate to carry out these powers. The

trust agreement must be enforced as written. In re Raymond Estate, 483 Mich at 52; In re Leix

Estate, 289 Mich App at 590-591; In re Reisman Estate, 266 Mich App at 527. The trial court

correctly ruled that defendant Geri Garcia was entitled to summary disposition regarding

plaintiff’s action to quiet title with respect to the Airport Road property.

III. THE UNDUE INFLUENCE CLAIM

A. STANDARD OF REVIEW

This Court reviews de novo the trial court’s grant or denial of a motion for summary

disposition. Maiden, 461 Mich at 118. A trial court properly grants the motion when the

submitted evidence fails to establish any genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. In re Leix Estate, 289 Mich App at 577.

A trial court’s ruling on a motion for reconsideration is reviewed for an abuse of

discretion, which occurs when the court’s decision falls outside the range of principled

outcomes. Yoost v Caspari, 295 Mich App 209, 219-220; 813 NW2d 783 (2012).

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B. DISCUSSION

We affirm the trial court on this issue because plaintiff failed to produce any evidence

creating a material question of fact that either the “Lady Bird” deed or the last will and testament

were the product of Geri Garcia’s undue influence over the free will of Bill Brown. The trial

court also correctly ruled that no evidence was presented to establish a confidential or fiduciary

relationship between Bill Brown and Geri Garcia so as to invoke the presumption of undue

influence with respect to the documents executed on February 10, 2012. Therefore, the trial

court properly granted Geri Garcia summary disposition and did not abuse its discretion denying

plaintiff’s motion for reconsideration.

The party alleging undue influence in the execution of a testamentary instrument must

present evidence “that the grantor was subjected to threats, misrepresentation, undue flattery,

fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and

impel the grantor to act against his inclination and free will.” Kar v Hogan, 399 Mich 529, 537;

251 NW2d 77 (1976). Proof of motive, opportunity, or even of the ability to control the grantor

are not sufficient to establish undue influence in the absence of affirmative proof that it was

exercised. Id.; In re Karmey Estate, 468 Mich 68, 75; 658 NW2d 796 (2003). Plaintiff

presented no evidence to the trial court that Geri Garcia exerted undue influence over Bill

Brown, and on appeal, plaintiff points to none. Indeed, the affirmative evidence shows that Bill

Brown’s actions on February 10, 2012, in his individual capacity and as the surviving settlor-

trustee of the Bill and Dena Brown trust, were Bill Brown’s free and voluntary choice. Further,

no evidence was presented that Geri Garcia influenced Bill Brown to create joint bank accounts

with her, to execute a new will naming Garcia as his personal representative and beneficiary, to

name Garcia his attorney-in-fact for both general purposes and health care decisions, or to

execute the “Lady Bird” quitclaim deed at issue.

Because plaintiff bore the ultimate burden of proof and failed to produce any evidence to

raise a material question of fact regarding the elements of undue influence, the trial court

properly granted summary disposition to defendant Geri Garcia on this claim. Kar, 399 Mich at

438 (“The ultimate burden of proof in undue influence cases does not shift; it remains with the

plaintiff throughout trial.”); In re Leix Estate, 289 Mich App at 577 (summary disposition is

appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a

matter of law). Plaintiff’s main assertion of error regarding the trial court’s grant of summary

disposition is that trial court failed to consider that the circumstances raised a presumption of

undue influence because there was evidence of a confidential or fiduciary relationship between

Bill Brown and Geri Garcia. This argument is without merit.

A presumption of undue influence exists when evidence establishes (1) the existence of a

confidential or fiduciary relationship between the grantor and a fiduciary, (2) that the fiduciary or

an interest represented by the fiduciary benefits from a transaction, and (3) that the fiduciary had

an opportunity to influence the grantor’s decision in the transaction. Kar, 399 Mich at 537.

Even when the presumption arises, the ultimate burden of proving undue influence remains on

the party alleging that it occurred. Id. at 538. But the presumption satisfies the burden of

persuasion, so if a party opposing the allegation of undue influence “fails to offer sufficient

rebuttal evidence,” then the party alleging undue influence will have met its burden of

persuasion, i.e., its burden of showing the occurrence of undue influence. Id. at 542. Generally,

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the fact finder must assess whether sufficient evidence has been presented to rebut a presumption

of undue influence. In re Peterson Estate, 193 Mich App 257, 262; 483 NW2d 624 (1992).

Plaintiff points to no evidence of a confidential or fiduciary relationship between Bill

Brown and Geri Garcia that existed before the execution of the questioned documents. Instead,

plaintiff asserts a bootstrap argument that conflates the fact that the grant of a power of attorney

will create a fiduciary relationship, citing In re Susser Estate, 254 Mich App 232, 236; 657

NW2d 147 (2002), with the general evidentiary principle that subsequent acts may be

circumstantial evidence regarding earlier events, citing In re Persons Estate, 346 Mich 517, 532;

78 NW2d 235 (1956) and Walts v Walts, 127 Mich 607, 610; 86 NW 1030 (1901). Plaintiff

contends that Bill Brown’s creating a fiduciary relationship is sufficient to raise a question of

fact regarding undue influence as to the execution of contemporaneous or prior documents. This

argument fails, as discussed below.

First, plaintiff cites no authority for the premise of his argument that the creation of

fiduciary relationship retroactively extends a presumption of undue influence to acts that took

place before the fiduciary relationship was created. Moreover, the cases plaintiff cites do not so

hold. Persons Estate, 346 Mich at 532, holds only that the conduct of the chief beneficiary of a

will before or after the will’s execution may be relevant to whether undue influence was exerted

in procuring the making of the will. The case says nothing about a presumption of undue

influence applying retroactively to times before the creation of a fiduciary relationship.

Similarly, Walts states the unremarkable evidentiary principle that subsequent events may be

circumstantially relevant evidence to explain earlier conduct. Thus, the evidence relates to prove

a fact in existence at an earlier time. Specifically, the Court stated that “evidence showing acts

of undue influence at a date subsequent to the execution of the will is competent, in connection

with other facts and circumstances, in support of the charge of undue influence exerted at the

earlier date.” Walts, 127 Mich at 610. This case also does not hold that a presumption of undue

influence may be applied retroactively to times before the creation of a fiduciary relationship.

An issue is deemed abandoned where a party fails to cite any supporting legal authority for its

position. Prince, 237 Mich App at 197.

Second, our Supreme Court, in discussing the elements necessary to establish a

presumption of undue influence clearly states that for the presumption to be “brought to life,”

i.e., to apply, evidence must be introduced that would establish “the existence of a confidential or

fiduciary relationship between the grantor and a fiduciary . . . .” Kar, 399 Mich at 537. Stated

otherwise, the presumption of undue influence cannot be applied to questioned documents that

were created before “the existence of a confidential or fiduciary relationship.” Thus, the creation

of a fiduciary relationship cannot shift the burden of persuasion with respect to undue influence

that is alleged to have been exerted before the fiduciary relationship was created. Because the

burden of production never shifted in this case from plaintiff to defendant with respect to the

questioned documents, and plaintiff failed to present evidence to create a question of fact as to

whether the questioned documents were the product of undue influence, the trial court properly

granted defendant summary disposition. Id. at 539-540; In re Leix Estate, 289 Mich App at 577.

Even if we were to assume that a presumption of undue influence arising from the

creation of the power of attorney could be applied retroactively, we recognize that the

presumption creates only a permissible inference that may be rebutted by the introduction of

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evidence to the contrary. Kar, 399 Mich at 541. The ultimate burden of proof regarding undue

influence remains with the party who alleges that it occurred. Id. at 539. In the present case, no

evidence was presented of undue influence and, in fact, the evidence showed that Bill Brown’s

actions were the result his own free will. So, even if a presumption of undue influence applied

retroactively stemming from the creation of a power of attorney in Geri Garcia, the presumption

was rebutted such that a reasonable trier of fact could only conclude that the questioned

documents were not the product of undue influence. They were the result of Bill Brown’s free

will. See, e.g., Id. at 537, 541, 543-544 (a directed verdict is appropriate when a defendant’s

rebuttal evidence overcomes the presumption).3 Therefore, based on the evidence submitted to

the trial court, even if a presumption of undue influence existed at the time the question

documents were created, the evidence presented to the trial court, giving the benefit of

reasonable doubt to plaintiff, does not leave open a question of undue influence on which

reasonable minds might differ. Id. at 543-544; West, 469 Mich at 183.

Plaintiff also argues that the trial court erred in granting summary disposition to

defendant regarding undue influence because it relied on “conclusory opinion” testimony of then

attorney Benjamin Bolser and bank employee Yvonne Currie. Both witnesses testified in their

depositions that they believed Bill Brown was acting of his own volition when executing the

questioned documents and that they saw nothing to indicate otherwise. A trial court may only

consider documentary evidence on a motion for summary disposition under MCR 2.116(C)(10),

“to the extent that the content or substance would be admissible as evidence.” MCR

2.116(G)(6); see also Maiden, 461 Mich at 121. Plaintiff’s argument in this regard lacks merit.

To the extent Bolser’s and Currie’s testimony amounted to lay opinions, it would be

substantively admissible because it was “(a) rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in

issue.” MRE 701. “Any witness is qualified to testify as to his or her physical observations and

opinions formed as a result of them.” Lamson v Martin (After Remand), 216 Mich App 452,

459; 549 NW2d 878 (1996).

In sum, the trial court properly granted defendant Geri Garcia summary disposition

regarding plaintiff’s claim of undue influence with respect to the questioned documents. In re

Leix Estate, 289 Mich App at 577. Furthermore, the trial court also did not abuse its discretion

denying plaintiff’s motion for reconsideration. Yoost, 295 Mich App at 219-220.

3

The standard applicable to directed verdicts is the same as that for a motion under MCR

2.116(C)(10), i.e., “whether reasonable minds, taking the evidence in a light most favorable to

the nonmovant, could reach different conclusions regarding a material fact.” Skinner v Square D

Co, 445 Mich 153, 165 n 9; 516 NW2d 475 (1994), overruled in part on other grounds Smith v

Globe Life Ins Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999).

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We affirm. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.

/s/ Jane E. Markey

/s/ Cynthia Diane Stephens

/s/ Michael J. Riordan

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