WILLIAM M HESSELL V JERRY C SOCIER
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM M. HESSELL, GERALD HESSELL,
and ROBERT A. HESSELL,
UNPUBLISHED
October 16, 2008
Plaintiffs-Appellees,
v
No. 276642
Alpena Circuit Court
LC No. 03-003357-CH
JERRY C. SOCIER and CAROL L. SOCIER,
Defendants-Appellants.
Before: Hoekstra, P.J., and Cavanagh and Zahra, JJ.
PER CURIAM.
Defendants appeal as of right the trial court’s order granting plaintiffs specific
performance of the parties’ March 7, 2002 contract, in which defendants agreed to sell plaintiffs
a portion of an 80-acre parcel they would acquire from the state of Michigan in a land exchange.
Because the trial court’s factual findings were supported by the record and did not violate the law
of the case, we affirm.
I
This appeal is the second time this case is before the Court. The trial court had
previously granted summary disposition to plaintiffs on the basis that defendant husband
operated as defendant wife’s agent in signing the contract and, therefore, her signature was not
necessary to the contract. On appeal, we concluded that this finding was improper because the
trial court engaged in fact finding regarding the scope of an agency relationship that is reserved
for a trier of fact to determine. Hessell v Socier, unpublished opinion per curiam of the Court of
Appeals, issued April 6, 2006 (Docket No. 257192).
On remand, following a bench trial, the trial court found that defendant husband, while in
defendant wife’s presence, signed the contract at her direction and with her manifestation of
consent. Specifically, the trial court found that “at some point prior” to the March 7, 2002
meeting, defendant wife had authorized her husband to enter into the contract. Accordingly, the
trial court held that defendant husband was defendant wife’s agent with the authority to sign the
contract on her behalf. It again ordered specific performance of the contract.
II
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Defendants claim that the trial court’s factual finding that defendant wife authorized
defendant husband to sign the contract “at some point prior to the meeting” violated the law of
the case and was clearly erroneous.
This Court reviews a trial court’s factual findings in a bench trial 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). A finding is clearly erroneous where, after reviewing the entire record, the
Court is left with a definite and firm conviction that a mistake has been made. Id. Whether a
trial court failed to follow an appellate court’s ruling on remand is a question of law reviewed de
novo. Schumacher v Dep’t of Natural Resources, 275 Mich App 121, 127; 737 NW2d 782
(2007).
According to plaintiffs, the trial court’s finding that “at some point prior to the meeting”
defendant wife authorized defendant husband to act as her agent in signing the contract violated
the law of the case because the same finding had been reversed by this Court in the first appeal.
The law of the case doctrine provides that a ruling by an appellate court on a particular issue
binds the appellate court and all lower courts with respect to the issue. Ashker v Ford Motor Co,
245 Mich App 9, 13; 627 NW2d 1 (2001). Consequently, “a trial court may not take any action
on remand that is inconsistent with the judgment of the appellate court.” Kalamazoo v Dep’t of
Corrections (After Remand), 229 Mich App 132, 135; 580 NW2d 475 (1998). Defendants’
argument misconstrues this Court’s prior opinion. This Court reversed the trial court’s order
granting summary disposition to defendants in the prior opinion because, by finding that
defendant husband acted as defendant’s wife in signing the contract, the trial court engaged in
impermissible factfinding. Hessell, supra, slip op 2. The reversal of the trial court’s order was
not based on the fact that any authorization by defendant wife to defendant husband to sign the
contract on her behalf was given before the September 7, 2002 meeting. Moreover, because the
Court remanded the case due to the existence of a factual dispute regarding whether defendant
husband acted as defendant wife’s agent in signing the contract, the law of the case doctrine did
not prevent the trial court from revisiting the issue. See Brown v Drake-Willock Int’l, 209 Mich
App 136, 144; 530 NW2d 510 (1995).
Next, defendants argue that the trial court’s findings were clearly erroneous because it
rejected their contention that defendant husband could only be considered defendant wife’s agent
if, immediately preceding the signing of the contract, defendant wife orally directed defendant
husband to sign the contract on her behalf. Defendants have not, however, provided citation to
any legal authority to support their position. “A party may not leave it to this Court to search for
authority to sustain or reject its position.” Magee v Magee, 218 Mich App 158, 161; 553 NW2d
363 (1996).
Nonetheless, direct evidence, as well as indirect evidence, may establish that an agent
entered into a contract at the principal’s request. See Morton v Murray, 176 Ill 54, 61-62; 51 NE
767 (1898). Based on the trial court’s factual findings regarding the indirect evidence and
defendant wife’s own testimony, we cannot say that the trial court’s finding that defendant
husband was defendant wife’s agent with the authority to sign the contract on her behalf was
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clearly erroneous. As found by the trial court, defendant wife was present throughout the entire
March 7, 2002 meeting, the contract was read aloud at the meeting, and defendant wife nodded
her head affirmatively when the parties were asked if they were in agreement with the contract.1
In addition, as testified to by defendant wife, before the meeting, she and defendant husband had
discussed giving plaintiffs an easement, and, upon leaving the meeting, she believed that
defendant husband had given plaintiffs, on his behalf as well as her behalf, an easement. Under
these circumstances, which indicate that defendant husband’s act of signing the contract was also
the act of defendant wife, the trial court’s finding that defendant husband was defendant wife’s
agent and that he signed the contract for her under her direction was not clearly erroneous.2
Accordingly, we affirm the trial court’s order granting specific performance of the contract.3
Affirmed.
/s/ Joel P. Hoekstra
/s/ Mark J. Cavanagh
/s/ Brian K. Zahra
1
While these factual findings conflicted with defendants’ trial testimony, the factual findings are
supported by the testimony of plaintiffs. Therefore, these factual findings are not clearly
erroneous.
2
We do not find it relevant that the contract provided for the sale of property, rather than for the
sale of an easement. Defendant husband signed the contract, and the trial court’s finding that
defendant husband also acted as defendant wife’s agent in signing the contract was not clearly
erroneous. While defendants may have been mistaken about the legal effect of the contract, a
unilateral mistake is not a defense to the enforcement of a deliberately executed contract. See
Rzepka v Michael, 171 Mich App 748, 756; 431 NW2d 441 (1988).
3
We need not address defendants’ argument that the trial court erred in holding that the equities
of the case required circumvention of the statute of frauds.
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