EUGENE VODOPYANOV V KELLER WILLIAMS REALTY NORTHVILLE (Per Curiam Opinion)
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
EUGENE VODOPYANOV and ANATOLY
MANT,
UNPUBLISHED
August 25, 2011
Plaintiffs-Appellants,
v
KELLER WILLIAMS REALTY a/k/a
NORTHVILLE MARKET CENTER, INC.,
MARINA SHEFFER a/k/a MARINA VALTSEV,
ALEX VALTSEV, and RAPID ENTERPRISES,
L.L.C.,
No. 296939
Oakland Circuit Court
LC No. 2006-076762-CK
Defendants-Appellees.
Before: CAVANAGH, P.J., and WILDER and OWENS, JJ.
PER CURIAM.
Plaintiff1 appeals as of right a judgment in favor of Keller Williams Realty a/k/a
Northville Market Center, Inc. (Keller Williams) on his statutory conversion claim. We affirm.
Plaintiff filed a complaint against Keller Williams, Marina Sheffer a/k/a Marina Valtsev,
Alex Valtsev, and Rapid Enterprises, LLC, after money that he allegedly gave toward an earnest
money deposit for a failed real estate transaction was not returned to him. The transaction was
between Rapid Enterprises, whose sole member was Valtsev, and Danovi, LLC, which is not a
party to this lawsuit. Valtsev was plaintiff’s cousin. Sheffer was the real estate salesperson for
Keller Williams and represented Rapid Enterprises, through Valtsev, in the Danovi transaction.
Sheffer was married to Valtsev. Plaintiff alleged that Sheffer and Valtsev solicited money from
him for a deposit on the Danovi transaction. He alleged that they presented a proposed business
venture, advised him that the purchase was a good investment opportunity for him, and that his
1
Plaintiff, Eugene Vodopyanov, alleged that he was the assignee of plaintiff Anatoly Mant and
throughout the lower court proceedings they were referred to collectively as “plaintiff,” in the
singular. For ease of reference, we will do the same.
-1-
deposit would eventually be returned. In his complaint, plaintiff claimed that Sheffer was acting
within the scope of her employment during these interactions with him.
Although plaintiff was never made a party to the Danovi transaction, he allegedly
provided money in September of 2004 to fund the earnest money deposit required by the
purchase agreement between Rapid Enterprises, through Valtsev, and Danovi. When the real
estate transaction failed, Danovi sued for the earnest money deposit pursuant to the terms of the
purchase agreement. A settlement was eventually reached which provided for Keller Williams,
the escrow agent for the Danovi transaction, to release the funds to Danovi. In his complaint,
plaintiff claimed that the release of the earnest money deposit by Keller Williams to Danovi
without plaintiff’s knowledge or consent amounted to a conversion of his money in violation of
MCL 600.2919a.
After a timely response to the complaint was not filed, a default was entered against
Keller Williams, Sheffer, and Rapid Enterprises. Valtsev was never served the complaint and,
thus, no default was sought or entered against him. Keller Williams moved twice to set aside the
default, but those motions were denied and the decisions were affirmed by this Court.
Vodopyanov v Keller Williams Realty Northville Mkt Ctr, unpublished opinion per curiam of the
Court of Appeals issued June 12, 2008 (Docket No. 274460). Then plaintiff moved for entry of a
default judgment, arguing that no genuine issues of material fact existed regarding his statutory
conversion claim and Keller Williams’ vicarious liability for Sheffer’s actions. And because the
damages were liquidated, he was entitled to $150,000 in trebled damages. Keller Williams
opposed the motion. The trial court granted the motion, in part, but held that there remained two
issues to be resolved by jury trial; first, whether Keller Williams received $50,000 or $44,000
and, second, the apportionment of damages among the defendants.
Thereafter, a four day jury trial commenced. Plaintiff presented the witness testimony of
Louis Ronayne, who was the broker manager at the Keller Williams’ office when the disputed
events occurred. Ronayne testified that there were no documents of any kind indicating that
plaintiff was represented by Keller Williams or its salesperson, Sheffer, with regard to the
Danovi transaction. After Valtsev’s initial earnest money deposit check for $50,000 bounced,
Valtsev brought in several checks to cover the deposit and plaintiff’s name was on some of them
as the remitter. Valtsev never did provide $50,000, he only provided $44,000. Ronayne testified
that it was not unusual that Valtsev borrowed the deposit money from friends and family. It
happened all of the time. But that did not mean that such lenders became a party to the
underlying purchase agreement. Ronayne believed that plaintiff was merely Valtsev’s relative
who helped him cover the bounced check.
After Valtsev’s check bounced, Sheffer was told to notify her client, Valtsev, and either
get the funds or notify Danovi that the transaction was not binding. Ronayne later found out that
Sheffer did not notify the seller about the deficient deposit. He did not find out about plaintiff’s
involvement in the real estate transaction until plaintiff came to the Keller Williams’ office long
after the legal action with Danovi was settled and it was paid the $50,000. Ronayne testified that
if Sheffer went to plaintiff and discussed investing money in the Danovi property, she was
operating on her own behalf as a friend of plaintiff’s and not as a representative of Keller
Williams. She would have been operating outside of the scope of her real estate license and
outside of the scope of her employment with Keller Williams. Plaintiff was simply dealing with
-2-
a friend, Sheffer, who happened to work at Keller Williams. And Ronayne later found out that
Sheffer married Valtsev at some point and Valtsev was plaintiff’s cousin, as well as business
partner in other ventures. Ronayne further testified that Keller Williams was merely the escrow
agent for the Danovi transaction and it was required to release the escrowed funds at the
direction of the parties to that transaction. In fact, because Valtsev only gave Keller Williams
$44,000, Keller Williams had to pay the shortfall of $6,000 out of its own funds.
Plaintiff then testified as the only other witness. He had known Sheffer since 1992 and
knew her parents as well. Plaintiff met Valtsev in 2004, after his cousin, Valtsev’s mother,
called him and asked him to help “support him somehow.” Plaintiff knew that Sheffer and
Valtsev got married in August of 2004, because he was at the wedding—which was before he
wrote the first check to Valtsev related to the Danovi real estate transaction. He became
involved in the Danovi transaction after Sheffer and Valtsev came to his house and presented a
deal to him in that regard. He was asked to pay the security deposit of $50,000 and then they
would develop the property. Plaintiff would be a 34 percent owner of a new entity called Rapid
Enterprise Property that did not exist. According to plaintiff, Sheffer advised him that it was a
good investment and advised him of its advantages. Then plaintiff opened a home equity line of
credit, at Sheffer’s suggestion, and secured the $50,000 for the deposit. Plaintiff testified that he
was assured he would recover his investment even if the transaction failed and he knew Sheffer
was a sales agent for Keller Williams. He trusted her. Plaintiff actually wrote some checks
toward the deposit to Valtsev, who then turned the money over to Keller Williams under his own
name. Eventually, plaintiff was told by Sheffer that the real estate transaction was successful
and that the property was purchased. Later, when he could not reach Sheffer by telephone, he
went to the Keller Williams’ office and found out that the deal failed and he lost his money. He
believed that Keller Williams “used all my money to cover this [Danovi] lawsuit.”
On cross-examination, plaintiff testified that he had loaned Valtsev $16,000 in 2005 to
open up a restaurant—even after he found out that the Danovi transaction failed. Plaintiff also
gave Valtsev $14,000 in 2004 to pay Valtsev’s apartment lease and car payments. Plaintiff was
in a cell phone business in 2005 with Valtsev and was eventually sued on a commercial lease.
That matter was settled with plaintiff paying $11,250 and Valtsev paying nothing. Valtsev never
paid back any of the money that plaintiff gave him. Plaintiff testified that he did not have any
written agreement with Valtsev or Sheffer regarding the Danovi transaction.
No other witnesses were called. Plaintiff then moved for a directed verdict on the issues
of vicarious liability and apportionment of damages. The motion was denied. Thereafter, the
jury rendered its verdict. Plaintiff was awarded damages in the amount of $41,000 and interest
of $5,940. Keller Williams was assigned zero percent of the fault, Sheffer was assigned 33
percent, Valtsev 34 percent, and Rapid Enterprises 33 percent of the fault. In answer to the
question whether Sheffer was acting outside of the scope of her employment in her dealings with
plaintiff, the jury responded in the affirmative. A judgment consistent with the verdict was
entered.
Plaintiff then moved for judgment notwithstanding the verdict or new trial, arguing that
the jury findings with regard to Keller Williams and Sheffer were erroneous, against the great
weight of the evidence, defied logic, and were the result of lack of judgment or the exercise of
passion or bias. Keller Williams responded to the motion, primarily arguing that the evidence
-3-
clearly demonstrated that Sheffer acted outside the scope of her employment with regard to her
alleged interactions with plaintiff; thus, Keller Williams could not be held vicariously liable for
her actions. Further, Keller Williams argued, when the parties to the failed Danovi transaction
reached a settlement and directed it to release the money to Danovi, it did so as required by the
law. No conversion was committed. The trial court agreed with Keller Williams, for “the
reasons articulated in the Response,” and denied plaintiff’s motion. This appeal followed.
First, plaintiff argues that his motions for (1) entry of a default judgment, (2) directed
verdict, and (3) judgment notwithstanding the verdict or new trial should have been granted on
the issues of Keller Williams’ joint and several liability and vicarious liability. We disagree.
We review a trial court’s decisions whether to grant a default judgment and whether to
grant a new trial under MCR 2.116 for an abuse of discretion. Saffian v Simmons, 477 Mich 8,
12; 727 NW2d 132 (2007); Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912
(2001). A trial court abuses its discretion “when the decision results in an outcome falling
outside the range of principled outcomes.” Corporan v Henton, 282 Mich App 599, 605-606;
766 NW2d 903 (2009) (citation omitted).
We review de novo a trial court’s decisions on motions for directed verdict and for
judgment notwithstanding the verdict (JNOV). Sniecinski v Blue Cross & Blue Shield of Mich,
469 Mich 124, 131; 666 NW2d 186 (2003). In our review we examine the evidence presented,
and all legitimate inferences arising from the evidence, in the light most favorable to the
nonmoving party to determine whether a question of fact existed on which reasonable jurors
could differ. Id.; Moore v Detroit Entertainment, LLC, 279 Mich App 195, 201-202; 755 NW2d
686 (2008). It is for the jury to weigh the evidence and decide the credibility of the witnesses.
King v Reed, 278 Mich App 504, 522; 751 NW2d 525 (2008). And if reasonable jurors could
honestly reach different conclusions, the court may not substitute its judgment for the jury’s and
the jury verdict must stand. Zantel Mktg Agency v Whitesell Corp, 265 Mich App 559, 568; 696
NW2d 735 (2005).
Joint and several liability has generally been abolished by tort-reform statutes “designed
to allocate fault and responsibility for damages among multiple tortfeasors.” Kaiser v Allen, 480
Mich 31, 37; 746 NW2d 92 (2008); see, also, MCL 600.2956. However, MCL 600.2956 states
that it “does not abolish an employer’s vicarious liability for an act or omission of the employer’s
employee.” Under the doctrine of respondeat superior, an employer may be vicariously liable for
an employee’s acts committed within the scope of his or her employment. Helsel v Morcom, 219
Mich App 14, 21; 555 NW2d 852 (1996). Or, as our Supreme Court noted in Rogers v JB Hunt
Transport, Inc, 466 Mich 645, 651; 649 NW2d 23 (2002), “a master is responsible for the
wrongful acts of his servant committed while performing some duty within the scope of his
employment.” (citation omitted.) Conversely, an employer is not liable for any act committed
outside the scope of employment “because the employee is not acting for the employer or under
the employer’s control.” Id. That is, to be liable for an employee’s conduct, that employee must
have been “engaged in the service of his master, or while about his master’s business.” Riley v
Roach, 168 Mich 294, 307; 134 NW 14 (1912). An act is considered outside the scope of
employment if the employee was acting to accomplish a purpose of his or her own. Martin v
Jones, 302 Mich 355, 358; 4 NW2d 686 (1942).
-4-
Plaintiff argues that, because he alleged in his complaint that Sheffer was acting within
the scope of her employment, his motion for entry of default judgment against Keller Williams
should have been granted on the issues of joint and several liability and vicarious liability.
Generally, a default settles the question of liability as to well-pleaded factual allegations and the
defaulting party is precluded from litigating that issue. See Kalamazoo Oil Co v Boerman, 242
Mich App 75, 78-79; 618 NW2d 66 (2000). However, the entry of a default does not transform a
legally deficient complaint into a legally sufficient complaint. “If the complaint fails to state a
cause of action, it will not support a judgment.” State ex rel Saginaw Prosecuting Attorney v
Bobenal Investments, Inc, 111 Mich App 16, 22; 314 NW2d 512 (1981). Further, conclusions of
law unsupported by sufficient factual allegations are not deemed admitted by a defaulting party.
See Cogswell v Kells, 293 Mich 541, 545; 292 NW 483 (1940); Bonnici v Kindsvater, 275 Mich
304, 309-310; 266 NW 360 (1936).
In this case, plaintiff’s complaint clearly failed to set forth “well-pleaded factual
allegations” in support of its legal conclusion that Sheffer was acting within the scope of her
employment with Keller Williams with regard to her interactions with plaintiff. See Cogswell,
293 Mich at 545; Bonnici, 275 Mich at 309-310. The most critical problem with plaintiff’s
factual allegations is that he failed to plead that any legally recognized relationship existed
between plaintiff and either Keller Williams or Sheffer.
Sheffer was employed by Keller Williams as a real estate salesperson. However, as
plaintiff avers in his complaint, Sheffer was acting as a buyer’s salesperson to Rapid Enterprises,
through Valtsev, with regard to a purchase agreement with Danovi. Plaintiff did not allege that
he was a legal party to the Danovi real estate transaction. Plaintiff did not allege that he
employed Sheffer or Keller Williams with regard to the Danovi transaction or any other real
estate transaction. For example, plaintiff did not allege that he entered into a buyer
representation agreement or service provision agreement with Keller Williams or Sheffer. If
plaintiff did not employ either Keller Williams or Sheffer, i.e., if he was not their real estate
client, how could Sheffer have been acting within the scope of her employment as a real estate
salesperson for Keller Williams with regard to any interactions that she had with plaintiff? How
could she have been “engaged in the service of [her] master, or while about [her] master’s
business,” Riley, 168 Mich App at 307, when Keller Williams had no legal relationship of any
kind with plaintiff?
And although plaintiff averred in his complaint that Keller Williams and Sheffer
breached fiduciary duties owed to him, he did not set forth any facts establishing that a fiduciary
relationship existed between plaintiff and either Sheffer or Keller Williams. See In re Karmey
Estate, 468 Mich 68, 74 n 2; 658 NW2d 796 (2003). A fiduciary relationship arises between a
real estate broker and a client, but plaintiff was not a client of Keller Williams or Sheffer. See
Brotman v Roelofs, 70 Mich App 719, 729; 246 NW2d 368 (1976). In the absence of a fiduciary
relationship, how did plaintiff acquire the right to be owed fiduciary duties by Keller Williams
and its salesperson?
In summary, the factual allegations in plaintiff’s complaint were clearly deficient to
support his legal conclusion that Sheffer was acting within the scope of her employment with
Keller Williams with regard to her interactions with plaintiff; thus, plaintiff was not entitled to
-5-
rely on the entry of default to prevail on this claim. Accordingly, the trial court properly denied
plaintiff’s motion for entry of a default judgment in this regard. See Cogswell, 293 Mich at 545.
The trial court also properly denied plaintiff’s motions for directed verdict and for
judgment notwithstanding the verdict on the issues of vicarious liability and joint and several
liability. The evidence produced at trial did not establish that Sheffer was acting within the
scope of her employment with Keller Williams with regard to her alleged interactions with
plaintiff. Again, there was no evidence that Sheffer or Keller Williams had any legal
relationship with plaintiff. Ronayne clearly testified, repeatedly, that no such relationship
existed with plaintiff. Plaintiff’s testimony did not contradict this fact and no other evidence
contradicted this fact.
Plaintiff testified that Sheffer and Valtsev came to his house to discuss the proposed
business investment and solicit a deposit on the Danovi property transaction. Plaintiff was
promised a 34 percent ownership interest in a real estate development company that did not exist
at that time in exchange for his money. Plaintiff was assured that it was a good business
opportunity and that, even if the transaction failed, he would get his money back. If the
transaction succeeded and the property was purchased, they would then develop the property and
sell the developed lots. Plaintiff’s lawsuit against Keller Williams is premised, in part, on the
claim that Sheffer was acting within the scope of her employment with regard to this business
proposal and solicitation of plaintiff’s money for the deposit.
However, Ronayne testified repeatedly that if Sheffer went to plaintiff and discussed
investing money in the Danovi property and solicited money from plaintiff to invest in that
transaction, she was operating on her own behalf, outside the scope of her real estate license and
outside of the scope of her employment. That is, she was not acting as a salesperson of Keller
Williams but as plaintiff’s friend or family member. And plaintiff testified that he knew Sheffer
and her parents since 1992. Sheffer was married to Valtsev, who was his cousin. In fact,
plaintiff attended their wedding even before he was approached by Sheffer and Valtsev and
secured the home equity loan to fund the earnest money deposit.
Clearly, contrary to plaintiff’s arguments on appeal, genuine issues of material fact
existed and the evidence was sufficient for a jury to reasonably conclude that Sheffer was not
acting within the scope of her employment with regard to her interactions with plaintiff. The
evidence included that: (1) plaintiff was not a client of either Keller Williams or Sheffer; (2)
plaintiff knew Sheffer and her parents since 1992; (3) plaintiff was Valtsev’s cousin; (4) plaintiff
knew that Sheffer was married to Valtsev before he gave the disputed funds; (5) plaintiff had
been involved in other business transactions with Valtsev and had a significant history of giving
Valtsev money and never getting paid back; (6) plaintiff was not a party to the Danovi
transaction; (7) both Sheffer and Valtsev went to plaintiff’s house to persuade him to invest in
the Danovi business opportunity by paying the deposit; (8) plaintiff was promised that he would
become part owner in a property development entity that did not exist in exchange for his money
for the deposit; (9) plaintiff was assured that, even if the transaction failed, he would get his
money back; and (10) if the transaction succeeded, they would develop the property and sell the
developed lots.
-6-
Thus, plaintiff’s claims in his appeal brief that there was no evidence that plaintiff’s
relationship with Sheffer was “based on friendship, rather than a broker/client relationship” and
that there was no evidence that Sheffer “would profit personally” are without merit. The facts
are uncontroverted and do not clearly establish that Sheffer was acting within the scope of her
employment with Keller Williams with regard to her interactions with plaintiff.
Plaintiff also argues that Keller Williams, through Ronayne, admitted that Sheffer was
authorized to receive the earnest money deposit and, thus, she was acting within the scope of her
employment when she turned that money over to Keller Williams. However, Sheffer represented
Valtsev in the Danovi transaction that required an earnest money deposit. The fact that Sheffer
was permitted to receive money that plaintiff wanted to give on behalf of Valtsev’s earnest
money deposit debt does not establish that she was acting within the scope of her employment
with regard to her alleged solicitation of funds from plaintiff for a purported business opportunity
to become part owner in a real estate development company. That is, plaintiff did not establish
that Keller Williams was aware of the manner in which Sheffer and Valtsev obtained the money
for the earnest money deposit. And although plaintiff was a remitter on some of the checks, as
Ronayne testified, people oftentimes borrow money from family members to pay toward a real
estate transaction.
Plaintiff also argues that Keller Williams “ratified” the purported unauthorized acts of
Sheffer “by accepting the benefit of Sheffer’s activity and accepting the escrow money from its
acknowledged source, the Plaintiff.” Plaintiff is correct that even unauthorized acts of an agent
can be deemed ratified by the principal if the principal accepts the benefits of the unauthorized
acts with knowledge of the material facts. Bruno v Zwirkoski, 124 Mich App 664, 668; 335
NW2d 120 (1983). Here, plaintiff’s claim against Keller Williams as pertains to the actions of
Sheffer is that she was acting within the scope of her employment with regard to the business
proposal and solicitation of plaintiff’s investment in the Danovi transaction with the promise that
he would not lose his money. But no evidence was presented that Keller Williams had any
knowledge of the unauthorized acts by which Sheffer secured the money to fund the earnest
money deposit. So even if Keller Williams was deemed to have accepted the benefits of the
unauthorized acts, Keller Williams did not have knowledge of the material facts and this
argument fails.
In summary, the trial court properly denied plaintiff’s motions for directed verdict and
judgment notwithstanding the verdict on the issues of vicarious liability and joint and several
liability. Viewing the evidence presented and all legitimate inferences arising from the evidence
in the light most favorable to Keller Williams, a reasonable jury could conclude that Sheffer was
not acting within the scope of her employment with regard to her interactions with plaintiff. See
Moore, 279 Mich App at 201-202. In light of our holding, we need not address plaintiff’s issue
on appeal that the trial court abused its discretion in denying his motion for JNOV or new trial
without stating a particularized basis. Any such error would be harmless. See MCR 2.613(A).
Next, plaintiff argues that, because of the default that was entered and in light of the
evidence presented at trial, he was entitled to a default judgment, directed verdict, and judgment
notwithstanding the verdict on his statutory conversion claim and Keller Williams should have
been found liable for the entirety of his damages, not Sheffer, Rapid Enterprises, or Valtsev. We
disagree.
-7-
Plaintiff’s statutory conversion claim set forth in his complaint provided as follows:
70. That Defendants, upon information and belief, knowingly failed to deposit
the earnest money deposit into a broker’s custodial account or escrow account in
the name of the remitter, Vodopyanov; subsequently transferred and converted the
earnest money deposit to their own use and transferred same to third parties,
without the knowledge or consent of Plaintiff Vodopyanov, in violation of MCL
339.2515(j); and thereby knowingly concealed and converted the property of
Plaintiff, contrary to MCL 600.2919a.
71. That the Defendants’ transfer to third parties of the earnest money deposit
without prior knowledge or consent or [sic] the remitter was unauthorized,
constitutes a conversion, and was motivated by the pecuniary self interest of
Defendants in that their payment to third parties was in settlement of litigation
naming all Defendants herein as party defendants.
As discussed above, the entry of a default does not transform a legally deficient
complaint into a legally sufficient complaint. The first obvious problem with plaintiff’s
complaint averments and allegations is his reliance on article 25 of the Michigan Occupational
Code. “MCL 339.2515(j),” as stated in his allegation, does not exist. And if plaintiff was
actually referring to MCL 339.2512(j) in an attempt to establish liability for Keller Williams’
alleged violations of the provisions that govern real estate brokers, such claim must fail on its
face. As MCL 339.2512 clearly sets forth in its first sentence, the penalties for committing
prohibited acts are set forth in article 6. As this Court explained in Claire-Ann Co v Christenson
& Christenson, Inc, 223 Mich App 25; 566 NW2d 4 (1997), article 6 does not provide “that
private persons may bring or intervene in civil actions to enforce any of the provisions of the
Occupational Code.” Id. at 30-31.
The next obvious problem with plaintiff’s complaint averments and allegations are his
claims that the money he provided should have been deposited in Keller Williams’ “broker’s
custodial account or escrow account in the name of the remitter, [plaintiff].” As discussed
above, plaintiff was not a party to the Danovi transaction and was not a client of Keller Williams;
thus, Keller Williams was not required to have a custodial account in plaintiff’s name. The
earnest money deposit provision set forth in the Danovi purchase agreement required that the
purchaser, Rapid Enterprises, deposit with Keller Williams an earnest money deposit—not
plaintiff.
Further, the evidence presented at trial was clear. Plaintiff testified that he willingly gave
his money to Sheffer for the purpose of investing in the Danovi business deal with his cousin,
Valtsev, who was the sole member of Rapid Enterprises. Plaintiff knew that his money was
being used for a deposit on the Danovi transaction and agreed to that arrangement even though
he was not a party to that transaction. Plaintiff fails to explain how being a remitter on some of
the checks he gave toward funding the earnest money deposit for Rapid Enterprises’ transaction
with Danovi gave rise to any rights against Keller Williams with respect to (1) that underlying
transaction or (2) the money that he gave away or loaned to Rapid Enterprises and Valtsev for
that transaction. The evidence was uncontested that, as the escrow agent for the Danovi
transaction, Keller Williams did, in fact, place the money it received to fund the earnest money
-8-
deposit into its custodial account for the Danovi transaction. It amounted to $44,000. No
contrary evidence was admitted at trial in this regard. However, when that transaction failed, the
parties to it—Rapid Enterprises, through Valtsev, and Danovi—reached a settlement agreement
that required Keller Williams as the escrow agent to relinquish the earnest money deposit to
Danovi. Rule 339.22313(5) of the Michigan Administrative Code (Rule 313) requires that
“[d]isbursement of an earnest money deposit shall be made in accordance with the agreement
signed by the parties.” And it is irrelevant that Keller Williams was a named party to the Danovi
lawsuit for failing to previously release the escrow deposit on Danovi’s demand.
Statutory conversion consists of (1) another person steals or embezzles property or
converts property to his own use or (2) another person buys, receives, possesses, conceals or aids
in the concealment of stolen, embezzled, or converted property knowing that the property had
been stolen, embezzled, or converted. MCL 600.2919a. As set forth above, to the extent that
plaintiff is relying on the first provision with regard to Sheffer’s alleged act of stealing,
embezzling or converting plaintiff’s money, that claim fails because she was acting outside the
scope of her employment with regard to her interactions with plaintiff.
The claim that Keller Williams converted plaintiff’s money when it transferred the
earnest money deposit to Danovi fails as well. The money that Keller Williams received for the
Danovi transaction’s earnest money deposit was placed in its trust account. There was no
evidence presented that Keller Williams had any knowledge of the manner or means used by
Sheffer or Valtsev to secure these funds. When the legal parties to that transaction directed that
the deposit be released to Danovi, Keller Williams released the deposit as required by Rule 313.
Plaintiff does not explain why Keller Williams had to seek and receive the consent of plaintiff in
order to carry out its duty as the escrow agent on the Danovi transaction in compliance with the
purchase agreement and settlement terms of the parties to that transaction. That is, how did
plaintiff acquire the right to any accounting of the funds that he allegedly paid with regard to a
legally binding purchase agreement between Rapid Enterprises—Keller Williams’ client—and
Danovi, to which plaintiff was not a party?
Which leads us to consider the next obvious problem with plaintiff’s complaint, as noted
by Keller Williams which argued that plaintiff’s claim of statutory conversion fails on its face
because it involves money. Generally, money is considered intangible and not subject to a claim
for conversion unless the claim involves an obligation to return to the plaintiff precise and
specific money. See Anderson v Reeve, 352 Mich 65, 70; 88 NW2d 549 (1958); Head v Phillips
Camper Sales & Rental, Inc, 234 Mich App 94, 111-112; 593 NW2d 595 (1999). In this case,
although it may be arguable that plaintiff’s money to fund the earnest money deposit was
identifiable because it was to be deposited into an escrow account, there are at least two other
problems. The first pertains to the issue whether Keller Williams ever had the requisite
obligation to return the money at all because (a) it was a deposit that likely would have been
applied toward the remaining balance if the Danovi transaction progressed to finality and (b) it
was subject to the punitive term of the purchase agreement. The second problem pertains to the
issue whether Keller Williams ever had the requisite obligation to return the money to plaintiff
because plaintiff was not its client and was not a party to the purchase agreement. It appears to
us, again, that plaintiff failed to state a legally enforceable claim of statutory conversion.
-9-
And the legal support for plaintiff’s statutory conversion claim as set forth in his appeal
brief is inapposite. The cases relied upon by plaintiff, including Garras v Bekiares, 315 Mich
141; 23 NW2d 239 (1946), Owosso Masonic Temple Assoc v State Savings Bank, 273 Mich 682;
263 NW 771 (1935), and Wilcox v Gauntlett, 200 Mich 272; 166 NW 856 (1918), do not involve
any situation even remotely similar to the situation presented in this case. They involve,
respectively, a consignment agreement, general and special bank deposits, and recovery of a
security deposit from directors of a bankrupt company. Plaintiff has not cited to a single case
that has any factual or legal similarity to this case and we could find none. Further, to the extent
that plaintiff is relying on MCL 339.2512(j) to support his claim, it fails as discussed above. See
Claire-Ann Co, 223 Mich App at 30-31.
Thus, we reject plaintiff’s arguments that he was entitled to a default judgment, directed
verdict, or judgment notwithstanding the verdict. Viewing the evidence presented and all
legitimate inferences arising from the evidence in favor of Keller Williams, a reasonable jury
could conclude that Keller Williams did not violate MCL 600.2919a. See Moore, 279 Mich App
at 201-202. Further, the trial court did not abuse its discretion when it denied plaintiff’s motion
for new trial because the verdict was not against the great weight of the evidence and the jury
verdict was supported by the evidence. See Allard v State Farm Ins Co, 271 Mich App 394,
406-407; 722 NW2d 268 (2006); Ellsworth v Hotel Corp of America, 236 Mich App 185, 194;
600 NW2d 129 (1999).
Finally, plaintiff argues that the trial court abused its discretion when it failed to allow the
admission of two of his proposed exhibits. We disagree. See Lewis v LeGrow, 258 Mich App
175, 200; 670 NW2d 675 (2003).
Plaintiff argues that the trial court should have allowed him to introduce proposed exhibit
C, a proof of service “showing the date of service of the Danovi suit upon Keller Williams,” and
proposed exhibit D, “a copy of the Danovi pleadings,” which apparently consisted of the Danovi
complaint and amended complaint naming the parties. In the trial court, plaintiff argued that
these exhibits were relevant to the issue of apportionment. The court noted that “apparently you
want to litigate that complaint in my court. That case was settled.” Plaintiff’s counsel responded
that he did not care about the allegations in the complaint, but needed it “to show who the parties
were to the lawsuit and when the money was paid on behalf of whom that money was paid.” The
court then asked defense counsel if he would stipulate to those items and he replied in the
affirmative. Plaintiff’s counsel then replied, “All right.” Thus, it appears that this matter was
settled in the trial court by stipulation of the parties. A party cannot agree to an issue in the trial
court and then argue on appeal that the resulting action was error. See Dresselhouse v Chrysler
Corp, 177 Mich App 470, 477; 442 NW2d 705 (1989). Therefore, we decline to address
plaintiff’s argument on appeal pertaining to the admission of these proposed exhibits. However,
even if we agreed with plaintiff that the proposed exhibits were admissible, such error would be
deemed harmless and no relief would be warranted. See MCR 2.613(A).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
/s/ Donald S. Owens
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.