IN RE ESTATE OF EDWARD JOSEPH MCCORMICK (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of EDWARD JOSEPH MCCORMICK.
ERIC A. BRAVERMAN, Personal Representative
of the Estate of EDWARD JOSEPH
MCCORMICK,
UNPUBLISHED
July19, 2011
Appellee,
v
No. 296547
Wayne Probate Court
LC No. 1992-513517-DE
LINDA MCCORMICK,
Appellant.
In re Estate of EDWARD JOSEPH MCCORMICK.
ERIC A. BRAVERMAN, Personal Representative
of the Estate of EDWARD JOSEPH
MCCORMICK,
Petitioner-Appellee,
v
No. 296551
Wayne Probate Court
LC No. 1992-513517-DE
MARY MCCORMICK,
Respondent-Appellant.
Before: BORRELLO, P.J., and METER and SHAPIRO, JJ.
PER CURIAM.
In these consolidated appeals, appellants Linda McCormick and Mary McCormick each
appeal as of right from the probate court’s February 1, 2010, opinion and order approving the
12th, 13th, and 14th and final accounts of appellee Eric Braverman, as personal representative of
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the estate of Edward J. McCormick, following a prior remand order from our Supreme Court.
We affirm.
This probate court case has a long procedural history that includes several prior appeals,
as well as prior appeals in a related circuit court divorce action. Appellant Mary McCormick is
the ex-wife of the decedent, Edward McCormick, and appellant Linda McCormick is Edward’s
daughter. Mary and Edward were divorced pursuant to a judgment of divorce that was issued in
August 1987, which they both appealed. On appeal, this Court affirmed the judgment in part,
reversed in part, and remanded for further proceedings related to the property division and
alimony provisions of the judgment. McCormick v McCormick, unpublished opinion per curiam
of the Court of Appeals (Docket No. 102806, issued September 9, 1991). Edward McCormick
died in 1992, before the remand proceedings were concluded.
An ongoing dispute in the circuit court divorce case involved the ownership and
distribution of the marital home located at 8995 Henry Ruff Road in Livonia (“Henry Ruff
property”). That property was ultimately awarded to Edward’s estate. In December 2003, while
the circuit court proceedings were pending, the property was damaged by fire. In January 2004,
the circuit court appointed a receiver to collect the insurance proceeds, oversee completion of
necessary repairs, and sell the property. The property was sold in October 2005 for $118,000.
After payment of the broker’s commission, closing fees, unpaid taxes, and other expenses, the
net sales proceeds of $105,156 were paid to the receiver for distribution as directed by the circuit
court.
In January 2006, the circuit court awarded appellee Braverman attorney fees of
$41,485.16 in the circuit court case. A separate order provided that those fees were to be paid by
the circuit court receiver, who paid them on June 20, 2006. On January 26, 2007, the circuit
court entered an order approving the receiver’s actions and discharging the receiver upon
payment of the balance of the funds in the receiver’s account ($5,018.87) to appellee Braverman,
for distribution as part of Edward’s estate. No appeal was filed from these circuit court orders.
Appellee Braverman thereafter filed a petition in the probate court requesting approval of
his 12th, 13th, and 14th and final accounts. The 12th account did not list any receipts or
disbursements. The only receipt and disbursement listed in the 13th account pertained to the sale
of the Henry Ruff property and the distribution of the sale proceeds to the circuit court receiver.
The 14th and final account listed as the only receipt the $5,018.87 account balance from the
receiver, and listed expenses of $7,564.50 for attorney fees, an inventory fee of $385, and
administrative costs of $60, leaving a deficit of $2,900.63. The probate court approved the
accounts in an order dated April 2, 2007.
Appellants appealed the probate court’s April 2, 2007, order to this Court, which affirmed
the order in In re McCormick Estate, unpublished opinion per curiam of the Court of Appeals,
issued December 11, 2008 (Docket No 277558). Thereafter, however, our Supreme Court
vacated this Court’s decision, reversed the probate court’s order, and remanded the case to the
probate court for further proceedings. In re McCormick Estate, 485 Mich 881; 772 NW2d 337
(2009). The Supreme Court’s remand order provided:
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We DIRECT the probate court to require the petitioner to provide an
itemized accounting that establishes his and the receiver’s entitlement to the
specific amounts they received from the estate as compensation. See MCR
5.310(C)(2)(c). In particular, the probate court shall require the petitioner to
provide an itemization of the $41,485 payment to himself from the estate, and the
$105,156 payment to the receiver from the proceeds of the sale of real property.
[Id.]
On remand, the probate court again approved the accounts without requiring further
itemization. The court clarified that “[t]he fees referred to by the Supreme Court were actually
fees approved and paid by order of the circuit court in the divorce action,” and none were paid
from the probate estate. The court also noted that neither Linda nor Mary had filed any written
objection for the January 25, 2010 hearing. In addition, the court expressed that neither Mary
nor Linda had standing to object to the accountings because Mary was not a surviving spouse
and Linda was not an heir with a property right in the estate. The probate court concluded:
This court, pursuant to the remand order from the Michigan Supreme
Court, finds that the fees referenced in the Supreme Court’s remand order were
ordered paid by the Wayne County Circuit Court. It appears that those orders
were not appealed and are now final. This court does not have the power to
review decisions of the Circuit Court or the Court of Appeals. Therefore, this
court does not award any of the fees referenced in the Supreme Court’s remand
order.
Finally, Mary McCormick and Linda McCormick are not interested
persons in the probate estate and therefore have no standing to object to the
accounts. None of the interested persons in these proceedings have objected to
the 12th, 13th, and 14th and final accounts or to the petition for complete estate
settlement.
It is hereby ordered that the 12th, 13[th], 14th and final accounts are
allowed as stated.
On appeal, appellants argue that the probate court violated the Supreme Court’s remand
order by failing to require an itemization of the $41,485 payment to appellee Braverman and the
$105,156 payment to the receiver. We disagree.
A lower court “may not take action on remand that is inconsistent with the judgment of
the appellate court.” Grievance Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120
(2000). The trial court is bound to strictly comply with the law of the case, as established by the
appellate court, “according to its true intent and meaning.” People v Blue, 178 Mich App 537,
539, 444 NW2d 226 (1989).
On remand, the probate court addressed the Supreme Court’s remand order by clarifying
the nature of the contested payments, explaining that they did not involve funds received from
the estate as compensation. Instead, they involved payments that were previously authorized and
approved by the circuit court in the divorce case. The record supports the probate court’s finding
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that the payments at issue were authorized by the circuit court and were not awarded by the
probate court.
First, the record clearly indicates that the $105,156 “payment” to the receiver was not
awarded to the receiver by the probate court, nor did these funds even constitute “compensation”
for his services. Rather, the funds represented the net proceeds from the sale of the Henry Ruff
property and were collected by the receiver for distribution in accordance with his appointment
as receiver in the circuit court divorce case. The circuit court’s February 20, 2004, amended
order appointing the receiver specifically authorized him to collect all insurance proceeds, ensure
the repair of the property, effectuate a sale of the property, and to apply any sales proceeds in the
manner directed by the circuit court. We also note that all necessary itemization for the
$105,156 payment, as well as the receiver’s receipts and disbursements, was included with
appellee Braverman’s 13th annual account. The account listed total receipts of $118,763.51 and
total expenses and disbursements of $118,763.51 in connection with the sale of the Henry Ruff
property, and a copy of the closing statement itemizing all expenses associated with the closing
was attached to the account. The closing statement reflected the purchase price of $118,000 and
credits for prorated taxes of $763.51, for total receipts of $118,763.51. In addition, it listed total
disbursements of $118,763.51, consisting of various itemized costs and other closing charges,
resulting in net sales proceeds of $105,156, which were transferred to the receiver. On remand,
the probate court correctly observed that “[a]fter payment of the expenses reflected in the closing
statement, the balance of $105,156 was paid to the receiver for distribution in accordance with
the order of the circuit court.” Also attached to the 13th account was an itemized listing of all of
the circuit court receiver’s receipts and disbursements, including his receipt of the $105,156 net
sales proceeds from the sale of the Henry Ruff property and a listing of all subsequent expenses
to which those proceeds were applied.
On January 26, 2007, the circuit court entered an order adjudicating “that the Receiver’s
actions were reasonable and necessary, and that he has discharged his duties in good faith[,]” and
directing that the “balance of the funds in the Receiver’s account for this matter will be
forwarded to the Estate of Edward McCormick, c/o Eric Braverman, Personal Representative.”
The receiver’s itemized account shows that, after satisfaction of all expenses, a balance of
$5,108.87 remained in the account, which was then transferred to the estate as accurately shown
on appellee Braverman’s 14th and final accounting.
In sum, the probate court complied with the Supreme Court’s remand order with respect
to the $105,156 payment to the receiver by addressing the nature of that payment and clarifying
that the receiver’s transactions with respect to the Henry Ruff proceeds were conducted under the
auspices of the circuit court. Further, the record reflects that all necessary itemization pertaining
to the $105,156 payment was included with appellee Braverman’s 13th account. The probate
court also correctly observed that, because the receiver had been appointed by the circuit court
and his transactions were all approved by that court, those transactions were outside the scope of
the probate court’s purview.
The Supreme Court’s remand order also directed that the probate court
require the petitioner to provide an itemized accounting that establishes his . . .
entitlement to the specific amounts . . . received from the estate as compensation.
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. . . . In particular, the probate court shall require the petitioner provide an
itemization of the $41,485 payment to himself from the estate[.]
We acknowledge that, on remand, the probate court did not require appellee Braverman to
provide an itemization of the $41,485 payment that he previously received. However, the
probate court responded to the Supreme Court’s directive by clarifying that the $41,485 payment
did not involve a payment that was requested from, or awarded by, the probate court and did not
involve a payment by “petitioner” to himself from the estate. Instead, the $41,485 payment was
received by appellee Braverman from the circuit court receiver from funds in the receiver’s
account after having been awarded and approved by the circuit court in the circuit court divorce
case. The circuit court’s February 20, 2004, amended order appointing the receiver specifically
authorized the receiver to effectuate a sale of the property and to apply any sales proceeds “[t]o
pay the fees and costs of [appellee] Eric Braverman[.]” In an order dated January 6, 2006, the
circuit court approved an award of attorney fees and costs to Braverman in the amount of
$41,485.16, and the $41,485.16 payment to Braverman is listed in the circuit court receiver’s
itemized account. Thus, the record clearly establishes that the $41,485 payment was received
from the receiver in the circuit court case, pursuant to the circuit court’s order.
The Supreme Court cited MCR 5.310(C)(2)(c) as authority for the itemization specified
in the Supreme Court’s remand order. That rule provides that “[a]ll accountings must be
itemized, showing in detail receipts and disbursements during the accounting period,” and that “a
written description of services performed must be included or appended regarding compensation
sought by a personal representative.” Here, however, the contested $41,485.16 amount had
previously been approved and awarded by the circuit court. It was not sought by appellee
Braverman as part of his 12th, 13th, or 14th and final accounts. Accordingly, itemization was
not required by MCR 5.310(C)(2)(c) in connection with those accounts. We believe that the
probate court complied with the Supreme Court’s remand order by clarifying the nature of the
$41,485.16 payment on remand and accurately explaining that it did not involve any fees
awarded by the probate court or sought by petitioner in his 12th, 13th, or 14th and final accounts.
We further agree that it was not necessary for the probate court on remand to hold an
evidentiary hearing on appellants’ other objections to the accountings. The probate court cited
two reasons for refusing to consider appellants’ objections: (1) because appellants failed to file
written objections to the accountings, and (2) because appellants lacked standing because they
were not interested persons in the estate. Although we question appellants’ standing, because the
Supreme Court previously granted appellants relief in connection with their objections to the
12th, 13th, and 14th and final accounts, we are reluctant to affirm on that basis. However, we
find no error with respect to the probate court’s other reasons for not considering appellants’
objections. MCR 5.310(C)(2)(c) provides that all accountings “must include notice that (i)
objections concerning the accounting must be brought to the court’s attention by an interested
person because the court does not normally review the accounting without an objection.”
Appellee Braverman’s accountings contained this notice. Appellants did not file any objections
to the accountings on remand. Accordingly, the probate court did not err by declining to further
consider appellants’ other objections.
Appellants also raise other issues pertaining to the circuit court case and to earlier
proceedings in the probate court. However, this appeal is limited to appellee Braverman’s 12th,
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13th, and 14th and final accounts. Issues unrelated to those accounts are beyond the scope of
this appeal.
For the foregoing reasons, we conclude that the probate court satisfactorily discharged its
duty to comply with the Supreme Court’s remand order and we affirm the probate court’s order.
Appellants also argue that this case should be assigned to a different judge on remand. In light
of our decision to affirm, however, it is unnecessary to address that argument.
Affirmed.
/s/ Stephen L. Borrello
/s/ Patrick M. Meter
/s/ Douglas B. Shapiro
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