CHRISTINE HELMS V ROBERT LEMIEUXAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
December 8, 2009
ROBERT J LEMIEUX, individually and as
Successor Trustee of the FRANCIS J. LEMIEUX
AND RUTH LEMIEUX REVOCABLE LIVING
TRUST dated July 16, 1999,
Genesee Circuit Court
LC No. 07-085849-CZ
Advance Sheets Version
STANDARD LIFE INSURANCE COMPANY OF
Before: K. F. KELLY, P.J., and JANSEN and FITZGERALD, JJ.
In this contract action, defendant Robert J. LeMieux, individually, and as successor
trustee of the Francis J. LeMieux and Ruth LeMieux revocable living trust dated July 16, 1999
appeals as of right the trial court’s order granting summary disposition for plaintiff, Christine
Helms, and defendant Standard Life Insurance Company of Indiana. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This dispute concerns an annuity policy entered into by Francis and Ruth LeMieux,
husband and wife. On August 9, 2002, Francis and Ruth, then 94 and 79 years old respectively,
jointly applied for an annuity with the Standard Life Insurance Company of Indiana (Standard) in
the amount of $100,000. The annuity application identifies Ruth as the “Joint Annuitant
Owner.” The words “Joint” and “Owner” are handwritten on the application. The application
identifies Francis as the “Joint Owner,” with the word “Joint” being handwritten above the
printedword “Owner.” Further, the provision identifying Francis also includes the phrase “If
different from Annuitant,” which is contained in parentheses and is printed under “Joint Owner.”
This application designates Francis and Ruth’s revocable living trust dated July 16, 1999, as the
beneficiary. Both Francis and Ruth signed the application.
Standard approved the application and issued the annuity on September 17, 2002. The
policy identified Ruth as the “Annuitant” and Francis as the “Joint Annuitant” contrary to what
was contained in the joint application. In October 2002, Francis and Ruth changed the primary
beneficiary of their annuity from the trust to their granddaughter, plaintiff Christine Helms.
Plaintiff was not aware that she had been made the beneficiary of the annuity.
On May 20, 2006, Ruth died. In July of that year, Standard sent Francis a letter
requesting information regarding Ruth’s death in order to process the claim. A heading on the
letter identified plaintiff as the beneficiary of the annuity. However, the body of the letter
indicated that Francis was the beneficiary, stating “As the beneficiary of Ruth M. LeMieux’s
annuity contract, we need the following information to process the claim . . . .” Plaintiff never
received a copy of this letter.
In response, Francis submitted an annuity claim form to Standard, dated July 26, 2006,
requesting a lump sum payment of the annuity proceeds. Standard responded to Francis by
letter, indicating that it could not continue the contract in Francis’s name unless it had plaintiff’s
consent. The letter indicated that a copy had also been sent to plaintiff, but plaintiff never
received a copy of this correspondence.
Defendant, LeMieux plaintiff’s father, who is also the beneficiary of the revocable living
trust, then sent plaintiff a form for her to sign that would permit the annuity to continue in
Francis’s name. As a result, plaintiff became aware that she was the beneficiary of the annuity
and she did not sign the form as her father requested. Instead, in December 2006, plaintiff
submitted an annuity claim form to Standard requesting a lump sum payment of the annuity.
On January 7, 2007, Francis died. On January 11, 2007, unaware that Francis had passed
away, Standard mailed both Francis and plaintiff a letter informing them that they had filed
competing claims and providing them notice that it would be filing an interpleader action in the
near future unless some agreement was reached between the parties. Defendant LeMieux and
plaintiff, however, were not able to come to an agreement regarding who is entitled to receive the
principal amount of the annuity. Defendant believed that he, as sole heir and beneficiary, as well
as personal representative, of Francis’s estate, was entitled to the proceeds of the annuity.
Consequently, plaintiff filed this lawsuit against Robert LeMieux, individually, and as
successor trustee of the revocable living trust (hereafter defendant) and Standard, seeking
declaratory relief.1 Defendant answered the complaint and also cross-claimed against Standard,
alleging that Standard breached the annuity contract and that Standard acted negligently.
Plaintiff included Standard as a party only because it is a stakeholder in the annuity contract.
Both Standard and plaintiff moved for summary disposition under MCR 2.116(C)(8) and
(10). Defendant also moved for summary disposition. The trial court granted judgment in favor
of plaintiff and Standard. The trial court reasoned:
[T]his annuity was originally purchased in  and then [Francis and
Ruth] changed the beneficiary . . . to Christine Helms. She became the primary
beneficiary [as of October 8, 2002].
The Court notes, in this matter, this was a joint annuitant situation as
indicated here and no decision was made to change that in writing, as required,
after the designation of Christine Helms on 10/8/02. Ruth died 5/2/06 and after
that nothing else can be changed because it was a joint situation. And the Court
believes at that time, . . . the proceeds of this annuity vested in Christine Helms as
the designee of the two who created this particular situation. 
Defendant moved for reconsideration, but his motion was denied. This appeal followed.
II. STANDARDS OF REVIEW
We review a trial court’s determination on a motion for summary disposition de novo.
Huntington Woods v Detroit, 279 Mich App 603, 614; 761 NW2d 127 (2008). The trial court in
this matter failed to specify the subrule under which it granted summary disposition.
Accordingly, we will consider the trial court’s decision as based on MCR 2.116(C)(10) because
it appears to have considered information outside the pleadings. Hughes v Region VII Area
Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). In conducting our review of
the trial court’s determination under MCR 2.116(C)(10), we must consider all the documentary
evidence in the light most favorable to the nonmoving party. Huntington Woods, supra at 614.
A motion brought under this subrule is properly granted if no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Montgomery v Fidelity &
Guaranty Life Ins Co, 269 Mich App 126, 128; 713 NW2d 801 (2005). Further, to the extent
that this Court must interpret the meaning of the annuity contract, our review is also de novo.
Grand Trunk Western R, Inc v Auto Warehousing Co, 262 Mich App 345, 350; 686 NW2d 756
III. DECLARATORY RELIEF
Defendant argues that the trial court erred when it ruled that Francis’s rights as a policy
owner of the annuity were extinguished upon Ruth’s death, at which time plaintiff’s rights to the
annuity’s proceeds vested. According to defendant, as an “owner” and “annuitant” under the
contract, Francis had full dominion and authority over the annuity. We disagree.
We note that the trial court did not make an explicit decision on Standard’s liability for its
alleged negligence. Rather, the court’s order simply states that it is granting summary
disposition in plaintiff’s favor and that defendant Robert LeMieux is liable for any and all costs
awarded to “any party” in this matter.
Resolution of defendant’s argument requires this Court to interpret the meaning of the
annuity contract. Our goal in doing so is to discern and enforce the parties’ intent using the clear
language of the contract. Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005);
Robert A Hansen Family Trust v FGH Industries, LLC, 279 Mich App 468, 476; 760 NW2d 526
(2008). When a contract’s language is plain and unambiguous, its terms must be applied as
written and construction of the contract is not permitted. Rory, supra at 468-469; Laurel Woods
Apartments v Roumayah, 274 Mich App 631, 638-639; 734 NW2d 217 (2007). We read
contracts as a whole and give contractual terms their common and ordinary meaning. Genesee
Foods Services, Inc v Meadowbrook, Inc, 279 Mich App 649, 656; 760 NW2d 259 (2008).
Further, “[w]here one writing references another instrument for additional contract terms, the
two writings should be read together.” Forge v Smith, 458 Mich 198, 207; 580 NW2d 876
(1998). If, however, the “provisions of a contract irreconcilably conflict, the contractual
language is ambiguous, and the ambiguous contractual language presents a question of fact to be
decided by a jury.” Laurel Woods Apartments, supra at 638. But the fact that the parties may
advance conflicting interpretations does not in itself render a contract ambiguous. Genesee
Foods Services, Inc, supra at 655.
Here, Francis and Ruth jointly entered into an annuity contract. The policy explicitly
states that the application and “this policy” comprise the entire annuity contract. Thus, we must
read these two writings together as one contract. Forge, supra at 207. The application, signed
by both Francis and Ruth, identifies Ruth as the “Joint Annuitant Owner.” The words “Joint”
and “Owner” are handwritten above and below, respectively, the printed term “Annuitant.” The
application also identifies Francis as the “Joint Owner” and the word “Joint” is handwritten
above the printed word “Owner.” Conversely, the policy, issued about a month later and not
signed by either Francis or Ruth, identifies Ruth as the “Annuitant” and Francis as the “Joint
Annuitant.” The general rule is that “where in an instrument there are 2 conflicting clauses or
provisions, the first shall be received as controlling and the latter one rejected.” Klever v Klever,
333 Mich 179, 189; 52 NW2d 653 (1952). Further, when handwriting is contained in a contract,
it will prevail over printed language. Mansfield Machine Works v Village of Lowell Common
Council, 62 Mich 546, 553-554; 29 NW 105 (1886); Berk v Gordon Johnson Co, 232 F Supp
682, 687 (ED Mich, 1964).3
These rules require us to consider the provisions in the application as prevailing over the
conflicting provisions in the policy. The policy was created on a later date than the application
and, thus, the application must be considered as controlling. Klever, supra at 189. The rule with
respect to handwriting also mandates that we interpret the application’s provisions as prevailing
over the policy’s provisions. The application contains handwriting specifically identifying the
We note that the rule of construction requiring that a contract entered into later in time will
supersede, and rescind, any inconsistencies in an earlier contract, Omnicom of Michigan v
Giannetti Investment Co, 221 Mich App 341, 346-347; 561 NW2d 138 (1997), is inapplicable to
this matter. Here, the application standing alone does not constitute a contract and is more
properly treated as a document containing additional contractual provisions, as incorporated by
parties’ respective roles, whereas the policy contains no handwriting and is not even signed by
Francis and Ruth. Accordingly, we conclude that Ruth was the joint annuitant owner of the
policy and that Francis was the joint owner, as stated in the application.
Having reached this conclusion, it is plain that plaintiff, as the beneficiary of the annuity,
was entitled to payment upon Ruth’s death. The first page of the policy unequivocally states,
“Standard . . . agrees to pay the proceeds of this contract . . . to the Annuitant except, that after
the Annuitant’s death, any payments due will be paid to the Beneficiary.” Defendant, however,
argues that as an “owner” of the policy, Francis was entitled to the annuity’s proceeds until his
death. According to defendant, the “death benefit” became payable to the beneficiary only after
Francis’s death, or “the death of the payee” consistent with the settlement options provision of
the contract. This argument lacks merit. Francis is not identified as a “payee” anywhere in the
contract and for this Court to apply this provision to the present matter would be contrary to the
parties’ intent as clearly stated on the policy’s first page.
After our reading of the annuity contract in the light most favorable to defendant, it is
plain to us that Ruth was the annuitant, Francis was a joint owner, and that plaintiff’s interest in
the annuity proceeds vested when the annuitant, Ruth, passed away. In light of our conclusion,
defendant’s argument that the trial court erroneously relied on certain Michigan Supreme Court
cases4 is irrelevant. Even assuming that the trial court erroneously relied on these cases in
reaching its conclusion, we will not reverse the trial court’s order because it reached the correct
result. See Coates v Bastian Bros, Inc, 276 Mich App 498, 508-509; 741 NW2d 539 (2007).
The trial court did not err by granting summary disposition for plaintiff.
IV. ADDITIONAL CLAIMS
Defendant next argues that Standard is liable to defendant under theories of negligence
and contract, because it breached its duty to Francis.5 We disagree. Defendant has not posited
an independent legal duty separate from those duties arising out of the contractual relationship.
Nor has defendant alleged physical damage to persons or property separate from Francis’s loss of
the money. Thus, defendant has no cognizable claim for negligence. Rinaldo’s Constr Corp v
Michigan Bell Tel Co, 454 Mich 65, 84-85; 559 NW2d 647 (1997). Further, defendant’s
contention that Standard breached the contract is also unavailing. As we have already
Defendant alleges that the trial court relied on Dogariu v Dogariu, 306 Mich 392; 11 NW2d 1
(1943), Prudential Ins Co v Irvine, 338 Mich 18; 61 NW2d 14 (1953), and Harris v Metro Life
Ins Co, 330 Mich 24; 46 NW2d 448 (1951). The trial court, however, did not mention any of
these opinions in its ruling.
As already noted, it does not appear from our review of the lower court record that the trial
court made a ruling with respect to these claims. However, “where the lower court record
provides the necessary facts, appellate consideration of an issue raised before, but not decided
by, the trial court is not precluded.” Hines v Volkswagen of America, Inc, 265 Mich App 432,
443-444; 695 NW2d 84 (2005). The record here contains the necessary facts and, therefore, we
exercise our discretion to consider defendant’s claims.
concluded, Standard was not obligated to pay Francis the annuity’s proceeds upon Ruth’s death.
Accordingly, defendant’s contract claim also fails.
/s/ Kirsten Frank Kelly
/s/ Kathleen Jansen
/s/ E. Thomas Fitzgerald