IN RE UNDERWOOD ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of JOHN G. UNDERWOOD,
Deceased.
GLENN R. UNDERWOOD,
UNPUBLISHED
December 7, 2010
Petitioner-Appellant,
v
No. 291852
Oakland Probate Court
LC No. 1977-130773-DD
PATRICIA R. SELENT,
Respondent-Appellee.
Before: BECKERING, P.J., and JANSEN and TALBOT, JJ.
PER CURIAM.
Petitioner appeals by right the probate court’s order denying his petition to open the
estate and surcharge respondent, who was the decedent’s former guardian. We affirm.
As an initial matter, we note that the probate court did not identify or explain why it
denied the petition. Rather, it denied the petition without comment. However, we conclude that
remand for clarification is unnecessary because, based on the record and the parties’ arguments,
the relevant statute of limitations and res judicata barred petitioner’s claims.
Petitioner argues that res judicata does not bar his petition because the claims had yet to
be fully litigated. We disagree. We review de novo the application of a legal doctrine such as
res judicata. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
The doctrine of res judicata bars a subsequent action when (1) the prior action was
decided on the merits, (2) both actions involve the same parties or their privies, and (3) the
matter in the second case was, or could have been, resolved in the first. ANR Pipeline Co v
Dep’t of Treasury, 266 Mich App 190, 212-213; 699 NW2d 707 (2005).
The instant case is related to a prior case decided by Oakland Circuit Court Judge John J.
McDonald, which was decided on appeal by this Court in Carto v Underwood Property Mgt Co,
unpublished opinion per curiam of the Court of Appeals, issued June 12, 2008 (Docket No.
272747). Carto involved a lawsuit in which several of petitioner’s siblings, including
respondent, sued him for mismanagement of the family partnership in which petitioner’s and
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respondent’s brother, the decedent, was also a partner. As a part of one of his affirmative
defenses, petitioner did not deny that he took money from the partnership, but claimed that he
was entitled to the money as compensation for the care, room, and board he provided for the
decedent, who had Down syndrome, from November 1981 to May 1998.
After deciding motions for summary disposition both for and against the plaintiffs and
the defendants in Carto, the circuit court conducted a trial on damages, which included
reasonable compensation for the care petitioner provided for the decedent. The damages trial
and the circuit court’s decisions on the motions for summary disposition together constituted a
final decision on the merits. In addition, both petitioner and respondent were a part of the circuit
court case as adverse parties and are parties in the instant case. Although appellate litigation
ensued, this Court’s opinion in Carto did not alter the circuit court’s decision on the merits;
rather, it merely remanded for clarification on portions of the damages calculations. Because the
prior action was decided on the merits and both actions involve the same parties, the first and
second elements of res judicata are satisfied.
The third requirement for the application of res judicata is that the matter in the second
case was, or could have been, resolved in the first. Washington v Sinai Hosp of Greater Detroit,
478 Mich 412, 420; 733 NW2d 755 (2007). A transactional test is used to determine if the
matter could have been resolved in the first case, under which the courts look to whether “a
single group of operative facts give rise to the assertion of relief.” Id. (quotations and citations
omitted); see also Adair v Michigan, 470 Mich 105, 124; 680 NW2d 386 (2004). “Whether a
factual grouping constitutes a ‘transaction’ for purposes of res judicata is to be determined
pragmatically, by considering whether the facts are related in time, space, origin or
motivation[.]” Washington, 478 Mich at 420 (quotations and citations omitted); see also Adair,
470 Mich at 125.
The crux of the petition is that respondent’s breaches of her fiduciary duties as the
decedent’s guardian resulted in the mishandling and improper accounting of the decedent’s
assets, which included the decedent’s share of the partnership cash distributions and Social
Security distributions. Petitioner requests that respondent be surcharged for these breaches in
order that he may be properly compensated for the care he provided to the decedent.
Based on the record in Carto, we conclude that the third element of res judicata is
satisfied because petitioner’s claim could have been resolved in the underlying circuit court case.
The facts of the instant case are intimately related in time and motivation to the facts of Carto,
and concern how much petitioner should be compensated for his care of the decedent. The
circuit court conducted a trial on damages and made a specific determination regarding how
much petitioner was entitled to for his care of the decedent, offsetting that amount against what
petitioner had taken for himself from the partnership account without authorization. Moreover,
the circuit court considered the decedent’s partnership cash distributions and the Social Security
distributions in making its decision. Thus, petitioner’s compensation and how the decedent’s
assets were used as compensation constitute operative facts in both actions. Further, petitioner
admits that he became aware of respondent’s actions during the circuit court case. Although
petitioner believes he is entitled to greater compensation and is clearly motivated by that fact, the
issues regarding respondent’s actions as the decedent’s guardian and how they related to what
petitioner was owed could have been resolved during the previous case and do not alter the fact
that petitioner has already been awarded reasonable compensation for his care of the decedent.
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We accordingly conclude that petitioner’s instant claim is barred by res judicata. Based on our
resolution of this issue, it is unnecessary to address petitioner’s arguments regarding the law of
the case doctrine and collateral estoppel.
In addition, even if petitioner’s claim were not barred by res judicata, the three-year
statute of limitations period contained in MCL 600.5805(10) bars his petition. When there are
no disputed questions of fact, we review de novo whether a cause of action is barred by the
statute of limitations. Citizens Ins Co v Scholz, 268 Mich App 659, 662; 709 NW2d 164 (2005).
The applicable limitations period is three years for the tort of breach of fiduciary duty.
MCL 600.5805(10); Miller v Magline, Inc, 76 Mich App 284, 313; 256 NW2d 761 (1977). A
breach of fiduciary duty claim accrues when the petitioner knew or should have known of the
breach. Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich
App 39, 47; 698 NW2d 900 (2005). The phrase “knew or should have known” indicates that an
objective standard applies when determining when the claim accrues. Id. at 47-48. As the
decedent’s plenary guardian, respondent was a fiduciary. MCL 700.1104(e).
The facts of Carto, which were presented to the probate court in the instant case,
establish that petitioner knew or should have known both in February 1998, and in November
2003, that his breach of fiduciary duty claim had accrued. In 1998, petitioner ceased caring for
the decedent and respondent turned over the accumulated Social Security funds to the
partnership pursuant to petitioner’s request. Petitioner then took a portion of those funds for
himself and distributed the rest to the other partners. Any issues regarding possible breaches of
respondent’s fiduciary duty pertaining to the Social Security funds should have become apparent
at the time when petitioner requested that respondent turn over the accumulated funds. Further,
because petitioner was heavily involved with both the management of the partnership and the
decedent’s care, he should have been aware of any breaches of fiduciary duty regarding the
decedent’s share of the partnership and the Social Security funds. Petitioner fails to explain how
his allegations of fraud prevented him from learning of these alleged breaches by respondent.
In addition, even if the statute of limitations period began to run from the close of the
decedent’s estate on November 13, 2003, petitioner did not file this claim until almost six years
later. Although petitioner commenced other litigation in the probate court regarding his
compensation for the decedent’s care in October 2006, that litigation did not include claims
against respondent for breaching her fiduciary duty and she was not a party in that case. Rather,
the petition in the instant case constituted a new and distinct cause of action. Because
respondent’s alleged breaches of her fiduciary duty reasonably could have been discovered prior
to 2009, petitioner’s claims are barred by the three-year period of limitations. MCL
600.5805(10).
Petitioner also argues that he was denied a fair opportunity to be heard because he only
received a response to his petition the day before the hearing. We disagree. Because this issue is
unpreserved, we review petitioner’s claim for plain error affecting his substantial rights. In re
Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008).
In civil cases, due process generally requires notice of the nature of the proceedings, a
meaningful time and manner to be heard, and an impartial decisionmaker. Cummings v Wayne
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Co, 210 Mich App 249, 253; 533 NW2d 13 (1995). However, an opportunity to be heard does
not require a full trial-like proceeding. Id.
The record reflects that petitioner originally noticed his petition to be heard at a hearing
of March 25, 2009. On March 24, 2009, the probate court entered an order adjourning the
hearing until April 8, 2009, and respondent filed a response on April 6, 2009. The probate court
entertained oral argument at the petition hearing and did not limit petitioner in his argument. In
other words, the record establishes that petitioner was given a full and fair opportunity to be
heard on his petition. Petitioner fails to cite to any authority to support his argument that he was
entitled to a more meaningful hearing.
Moreover, as discussed above, further briefing by petitioner or additional discovery
would have been futile because the probate court properly dismissed the petition without
considering the merits. In addition, petitioner did not request an adjournment to reply to
respondent’s filing. Instead, he acquiesced to the probate court’s consideration of the petition at
the hearing of April 8, 2009. Therefore, petitioner has failed to show any error.
Petitioner further argues that the probate court overlooked evidence establishing that
respondent’s wrongdoing constituted a violation of MCL 700.5315 and that the probate court
erroneously believed that a valid care-provider agreement existed in this case. However, for
reasons already discussed, the probate court did not err by failing to consider the merits of these
allegations because the petition was barred by the doctrine of res judicata and the relevant statute
of limitations.
Lastly, petitioner argues that the probate court had an obligation to explain its lack of
oversight of respondent as the decedent’s guardian, which permitted respondent to engage in
fraud. However, petitioner has failed to mention or explain any specific instance in which the
probate court’s oversight of respondent was lacking. Further, petitioner fails to cite to any
authority in support of his position. We will not search for authority to sustain or reject a party’s
position. Davenport v Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App 400, 405; 534
NW2d 143 (1995). Petitioner’s failure to cite sufficient authority constitutes an abandonment of
this issue on appeal. Goldstone v Bloomfield Twp Pub Library, 268 Mich App 642, 658; 708
NW2d 740 (2005), aff’d 479 Mich 554 (2007).
Affirmed. As the prevailing party, respondent may tax costs pursuant to MCR 7.219.
/s/ Jane M. Beckering
/s/ Kathleen Jansen
/s/ Michael J. Talbot
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