DIVERSIFIED MEAL SERVICES INC V DEBORAH CROWNOVER
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STATE OF MICHIGAN
COURT OF APPEALS
DIVERSIFIED MEAL SERVICES, INC.,
UNPUBLISHED
June 2, 2009
Plaintiff/Counter-DefendantAppellant,
v
No. 284633
Jackson Circuit Court
LC No. 07-001666-CZ
DEBORAH CROWNOVER, d/b/a RE/MAX
MID-MICHIGAN,
Defendant-Appellee,
and
FILLMORE’S, INC.,
Defendant-Counter-Plaintiff.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
PER CURIAM.
Plaintiff appeals as of right, challenging the circuit court order’s awarding defendant
Crownover (“RE/Max”) costs of $2,550 on the basis that plaintiff’s action against it was
frivolous. We affirm. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
We review a trial court’s finding that an action was devoid of arguable legal merit and,
therefore, frivolous under MCL 600.2591(3)(iii), for clear error. Schroeder v Terra Energy, Ltd,
223 Mich App 176, 195; 565 NW2d 887 (1997).
Plaintiff asserts that its complaint “intended a civil action in which the account holder
must be a party to secure jurisdiction over the deposit within the court’s power to dispose of the
fund.” Plaintiff contends that Re/Max held the deposit money in trust and was a necessary party
so that the trial court could order disposition of the fund. But regardless of whether a meritorious
action could have been filed by plaintiff against Re/Max, the trial court did not clearly err in
finding that the action that was filed was devoid of arguable legal merit. Plaintiff’s complaint
did not allege that Re/Max held the earnest money deposit in trust. Rather, the complaint alleged
that plaintiff had demanded return of the deposit and Re/Max had refused its request. The
complaint did not specify the basis for the cause of action against Re/Max, but in the absence of
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any other allegations, the only basis was Re/Max’s refusal to return the deposit upon plaintiff’s
demand. However, the purchase agreement stated, “If a dispute then exists between the Seller
and Buyer, Seller and Buyer agree that the Seller Broker/Escrow Agent shall not release the
Earnest Money Deposit without the written consent of both parties.” In light of this provision,
the trial court did not clearly err in finding that plaintiff’s action against Re/Max for failure to
return the deposit was devoid of arguable legal merit.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
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