                          STATE OF MICHIGAN

                           COURT OF APPEALS



LAURA ABBONIZIO, MELANIE                                           UNPUBLISHED
HULSLANDER, a Minor, by Next Friend                                June 1, 2017
BRYAN HULSLANDER, and PRESTON
HULSLANDER,

              Plaintiffs-Appellants,

v                                                                  No. 330022
                                                                   Wayne Circuit Court
BANK OF AMERICA, NA, COMERICA BANK                                 LC No. 15-005474-NZ
& TRUST, NA, and LEVEL ONE BANK,

              Defendants-Appellees.


Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       Plaintiffs, Laura Abbonizio, Melanie Hulslander, a minor, by next friend Bryan
Hulslander, and Preston Hulslander, appeal as of right the order granting summary disposition in
favor of defendants, Bank of America, NA, Comerica Bank & Trust, NA, and Level One Bank,
regarding plaintiffs’ claim of conversion of checks under the Uniform Commercial Code (UCC),
MCL 440.1101 et seq. We affirm.

        This matter arises out of the misappropriation of funds by plaintiffs’ attorney, Brian J.
Benner, following his representation for claims stemming from a motor vehicle accident.
Abbonizio was voluntarily paid personal injury protection (PIP) benefits in the amount of
$7,737.78. The third-party negligence action was settled for $400,000. The checks written by
the insurers to plaintiffs and Benner were received by Benner, signed by Benner as plaintiffs’
personal representative, with Benner designated in the signatory line as having power of attorney
for all plaintiffs, and deposited in his client trust fund (IOLTA) account. Thereafter, Benner
removed all of the funds without payment to plaintiffs.

        Plaintiffs asserted a claim for conversion against defendants under the UCC. Plaintiffs
contended that the banks, and in particular Level One Bank as a depository bank, violated the
provisions of the UCC by negotiating a check without the proper authorization by all payees,
thus breaching the presentment warranties. See MCL 440.4208.

        Defendants moved for summary disposition pursuant to MCR 2.116(C)(4) and (10), and
the trial court granted the motion. In granting summary disposition in favor of defendants, the
                                               -1-
trial court did not specifically address the provisions of the UCC cited by plaintiffs in support of
their claim of violation of the statutory provisions and the imposition of liability. Rather, the
trial court found that plaintiffs’ claims were not sustainable due to the absence of proximate
causation; in other words the harm suffered by plaintiffs was not attributable to the banks, but
rather, the subsequent wrongdoing of Benner.

        As discussed in Bernardoni v City of Saginaw, 499 Mich 470, 472; 886 NW2d 109
(2016), a trial court’s decision on a motion for summary disposition is reviewed de novo “to
determine if the moving party is entitled to judgment as a matter of law.” “Jurisdictional
questions under MCR 2.116(C)(4) are questions of law, which are reviewed de novo.” Fulicea v
State of Michigan, 308 Mich App 230, 232; 863 NW2d 385 (2014) (citation and quotation marks
omitted). “A motion for summary disposition made under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. The Court considers all affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties in the light most favorable to the party
opposing the motion.” Bernardoni, 499 Mich at 472-473 (citation omitted). Pursuant to MCR
2.116(G)(4):

       A motion under subrule (C)(10) must specifically identify the issues as to which
       the moving party believes there is no genuine issue as to any material fact. When
       a motion under subrule (C)(10) is made and supported as provided in this rule, an
       adverse party may not rest upon the mere allegations or denials of his or her
       pleading, but must, by affidavits or as otherwise provided in this rule, set forth
       specific facts showing that there is a genuine issue for trial. If the adverse party
       does not so respond, judgment, if appropriate, shall be entered against him or her.

Hence, “[t]his rule requires the adverse party to set forth specific facts at the time of the motion
showing a genuine issue for trial. A reviewing court should consider the substantively
admissible evidence actually proffered by the opposing party. When the proffered evidence fails
to establish a genuine issue regarding any material fact, the moving party is entitled to judgment
as a matter of law.” Bernardoni, 499 Mich at 473 (citations omitted).

        On appeal, plaintiffs assert that the trial court erred in granting summary disposition to
defendants because the signatures on behalf of the Hulslander plaintiffs were unauthorized,
rendering the check invalid and its deposit a conversion. Plaintiffs further assert that the powers
of attorney signed by Abbonizio were invalid and that the Hulslanders’ claims should not be
bifurcated based on jurisdictional limits. Finally, plaintiffs suggest that the grant of summary
disposition was premature given the need for continuing discovery. We disagree.

        Initially, a point of clarification is required. Plaintiffs frequently refer to Benner’s
endorsement of the checks as a “forged” signature. This is not an accurate characterization
premised on the statutory language, which determines the applicable provision of the UCC and
the related defenses that are available. MCL 440.3420 references and is relevant to instruments
paid to “a person not entitled to enforce the instrument or receive payment.” MCL 440.3420(1).
“This language is broad and encompasses many circumstances.” John Hancock Fin Servs, Inc v




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Old Kent Bank, 185 F Supp 2d 771, 777 (ED Mich, 2002), aff’d 346 F3d 727 (CA 6, 2003).1 In
contrast, MCL 440.3406 “limits the preclusion defense to instances in which ‘an alteration of an
instrument’ or ‘the making of a forged signature’ occurs.” Id. As such, the language comprising
MCL 440.3406 is deemed to be “narrower” than that contained in MCL 440.3420, leading to the
conclusion that the cited “provisions do not encompass the same circumstances.” Id. MCL
440.3406, comment 2, states in relevant part: “Unauthorized signature is a broader concept that
includes not only forgery but also the signature of an agent which does not bind the principal
under the law of agency. The agency cases are resolved independently under agency law.
Section 3-406 is not necessary in those cases.” Thus, while an unauthorized agent is a “person
not entitled to enforce the instrument” and payment on a check to an unauthorized agent would
constitute conversion under § 440.3420, the preclusion defense2 would be inapplicable. John
Hancock Fin Servs, Inc, 185 F Supp 2d at 777.

       Because Benner’s signature, asserted in a representative capacity for Bryan Hulslander,
would constitute an unauthorized signature and not a forgery, MCL 440.3420 governs this claim.
MCL 440.3420 states, in relevant part:

         (1) The law applicable to conversion of personal property applies to instruments.
         An instrument is also converted if it is taken by transfer, other than a negotiation,
         from a person not entitled to enforce the instrument or a bank makes or obtains
         payment with respect to the instrument for a person not entitled to enforce the
         instrument or receive payment . . .

                                               * * *

         (3) A representative, other than a depository bank, who has in good faith dealt
         with an instrument or its proceeds on behalf of one who was not the person
         entitled to enforce the instrument is not liable in conversion to that person beyond
         the amount of any proceeds that it has not paid out.

A “depository bank” is defined in MCL 440.4105(b) as “the first bank to take an item even
though it is also the payor bank, unless the item is presented for immediate payment over the
counter.” It is undisputed by the parties that Level One Bank is a “depository bank” in
accordance with the statutory definition.

       The $400,000 check issued by Auto-Owners Insurance indicated that it was payable, “to
the Order of Laura Abbonizio, Bryan Hulslander as Next Friend of Preston Hulslander and
Melanie Hulslander and their attorney Brian J. Benner, P.C.” The five checks issued by AAA
were payable to “Benner & Foran and Laura Abbonizio.” The use of the word “and” in



1
 Although not binding on this Court, federal caselaw may be viewed as “persuasive authority.”
Travelers Property Cas Co of America v Peaker Servs, Inc, 306 Mich App 178, 188; 855 NW2d
523 (2014) (citation omitted).
2
    See UCC 3-406, e.g.


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identifying the payees is relevant. In accordance with the applicable portion of MCL
440.3110(4), “If an instrument is payable to 2 or more persons not alternatively, it is payable to
all of them and may be negotiated, discharged, or enforced only by all of them.” (Emphasis
added.). Thus, the Auto-Owners check must have been signed by all identified payees.

        Although Abbonizio challenges the validity of her signed powers of attorney, the initial
dispute centers on the acceptance and negotiation of the $400,000 check by Level One Bank
based on Benner’s alleged unauthorized endorsement of the instrument in the absence of an
executed power of attorney for Bryan Hulslander in his capacity as next friend for the minor
children. There is, in actuality, no dispute that Benner’s endorsement of the check on behalf of
Bryan Hulslander as next friend of the minor children was unauthorized given the absence of any
documentation executed by Hulslander granting such authority to Benner. As such, MCL
440.3110(4) establishes that a conversion occurred with respect to Hulslander. Specifically,
MCL 440.3110(4) provides, in pertinent part, “If an instrument is payable to 2 or more persons
not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only
by all of them.” This is buttressed by the associated Comments discussing this subsection, which
explain:

       If an instrument is payable to X and Y, neither X nor Y acting alone is the person
       to whom the instrument is payable. Neither person, acting alone, can be the
       holder of the instrument. The instrument is “payable to an identified person.”
       The “identified person” is X and Y acting jointly. Thus, . . . X or Y, acting alone,
       cannot be the holder or the person entitled to enforce or negotiate the instrument
       because neither, acting alone, is the identified person stated in the instrument.
       [MCL 440.3110, comment 4 (citations omitted.)]

        While Benner had no executed power of attorney for Bryan Hulslander in his capacity as
next friend for the minor children, Abbonizio, as an individual, cannot establish conversion of
the checks with respect to herself. This is necessarily so, based on her execution of powers of
attorney granting Benner the authority to negotiate and deposit the checks issued from Bank of
America and Comerica Bank & Trust into his IOLTA account.

         Abbonizio, at the outset of the automobile negligence action, signed a retainer agreement
that granted “a specific power of attorney” to Benner “to endorse and deposit into the client trust
account any . . . checks received . . . and made payable to [Benner] in whole or part . . .” Later in
the litigation, following settlement of the third-party action, Abbonizio signed a second power of
attorney, on her own behalf, granting Benner “a limited power of attorney to sign my name onto
any settlement check received in the matter of my personal injury claim for the purpose of
depositing said check into the Brian J. Benner, IOLTA account.” Benner, as Abbonizio’s agent,
was thus acting with actual authority on her behalf, defined in Black’s Law Dictionary (10th ed),
as the “[a]uthority that a principal intentionally confers on an agent or authority that the agent
reasonably believes he or she has as a result of the agent’s dealings with the principle,” when
depositing all of the checks (voluntary PIP payments and third-party settlement monies) into his
trust account and no conversion of those checks occurred with respect to Abbonizio. This
comports with MCL 440.3402(1), which states, in relevant part:



                                                -4-
       If a person acting, or purporting to act, as a representative signs an instrument by
       signing either the name of the represented person or the name of the signer, the
       represented person is bound by the signature to the same extent the represented
       person would be bound if the signature were on a simple contract. If the
       represented person is bound, the signature of the representative is the “authorized
       signature of the represented person” and the represented person is liable on the
       instrument, whether or not identified in the instrument.

       So long as the powers of attorney were valid Benner had the actual authority to endorse
and deposit into the client trust account any checks received and made payable to Benner in
whole or part on Abbonizio’s behalf, as set forth in the retainer agreement.

        Abbonizio’s assertion that the powers of attorney were invalid because they do not
comport with the formalities of a durable power of attorney under MCL 700.5501 is
disingenuous. Abbonizio contests the validity of the powers of attorney based on the failure to
have her signature witnessed and notarized. See MCL 700.5501(2). This formality is, however,
irrelevant because of the absence of any indication that either power of attorney was intended or
designed to be a durable power of attorney, which requires the inclusion of very specific
language. To be construed as a durable power of attorney, the document must contain the words
“This power of attorney is not affected by the principal’s subsequent disability or incapacity, or
by the lapse of time,” for example, or “This power of attorney is effective upon the disability or
incapacity of the principal,” or “similar words showing the principal’s intent that the authority
conferred is exercisable notwithstanding the principal’s subsequent disability or incapacity and,
unless the power states a termination time, notwithstanding the lapse of time since the execution
of the instrument.” MCL 700.5501(1). Hence, the failure to abide by the formalities for
executing a durable power of attorney are not applicable where the power of attorney does not
contain the requisite language necessary to be construed as a durable power of attorney.

        Plaintiffs contend, however, that the endorsements cannot be bifurcated; in other words
the unauthorized endorsement by Benner for Bryan Hulslander negates the entire transaction and
imposes liability. In Pamar Enterprises, Inc v Huntington Bank of Mich, 228 Mich App 727;
580 NW2d 11 (1998), a drawee and depository bank were sued for allegedly violating their
statutory duties in improperly paying a check to one of the identified payees in the absence of an
endorsement of a second payee. Id. at 730-731. The Court in Pamar determined that the
endorsement of one payee, in the absence of an endorsement by the second payee, “was not
sufficient to allow negotiation of the check.” Id. at 733. The Court, citing MCL 440.3420(1),
found, “a bank may be liable for conversion if it makes or obtains payment on a check that is
payable to two payees, not alternatively, but endorsed by only one of the payees.” Id. at 734.
Thus, in accordance with Pamar and MCL 440.3420(1), “an instrument is converted if a bank
‘makes or obtains payment with respect to the instrument for a person not entitled to enforce the
instrument or receive payment.’ . . . A conversion action may be brought by the intended payee
against either the depository bank or the drawee bank.” Pamar, 228 Mich App at 734 (citations
omitted). Given the above, we agree with plaintiffs that the negotiation of the check received in
the amount of $400,000 from Bank of America constituted a conversion under MCL 440.3110(4)
and MCL 440.3420(1) due to the unauthorized signature of Benner on behalf of Bryan
Hulslander. That, however, does not resolve the matter. The issue of ultimate liability rests on
whether a defense is available to the banks.

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        This Court addressed possible defenses available to banks for breach of the presentment
warranty as an issue of first impression in Comerica Bank v Mich Nat’l Bank, 211 Mich App
534, 538; 536 NW2d 298 (1995), which recognized “that a bank may escape liability for
honoring a check on a faulty or improper endorsement, or even with no endorsement, if the bank
can prove that the intended payee received the proceeds of the check.” The principles underlying
the intended-payee defense were explained as “preventing a drawer from being unjustly enriched
by recovering for an improperly paid check where the proceeds of the check in fact were
received by the payee” and in instances “where a bank’s improper payment is not a cause of the
drawer’s injury flowing from the transaction.” Id. As a consequence, this Court held “that the
intended-payee defense is available to a bank in defending an action for breach of its
presentment warranties.” Id.

        The intended-payee defense has been explained as providing “that a drawee bank is not
liable to the drawer of a check for an improper payment if (1) the proceeds of the check reach the
person the drawer intended to receive them and (2) the drawer suffers no loss proximately caused
by the drawee’s improper payment.” Pamar Enterprises, Inc, 228 Mich App at 737. Plaintiffs
contend that Abbonizio and the Hulslanders were the intended payees and did not receive any of
the monies, obviating defendants’ ability to establish the first element of the intended-payee
defense. Defendants, on the other hand, contend that the check was received by the intended
payee because it was received by plaintiffs’ attorney and deposited into his IOLTA account for
distribution. Defendants argue that because the proceeds were not ultimately used for their
intended purpose is not relevant because the monies went into the proper account. We agree
with defendants.

        The checks for the PIP benefits were received by the intended payee, Abbonizio and her
attorney, premised on their “payable to” designation and the powers of attorney executed by
Abbonizio. The powers of attorney authorized Benner’s signature and deposit into his IOLTA
account on behalf of Abbonizio. The loss of the monies associated with these checks was caused
by Benner’s fraudulent conduct in removing the money from the IOLTA account and not
distributing the proceeds in accordance with the retainer agreement. Because Abbonizio’s loss
was not proximately caused by any improper payment by defendants, on her behalf, her claim
cannot be sustained.

       No different outcome occurs with reference to the Hulslanders. There is no evidence that
Bryan Hulslander approved, directed or agreed to permit Benner to sign for him in a
representative capacity. Given this deficiency, plaintiffs’ argue that the check that was payable
to him as one of the identified payees did not reach the intended payee through its deposit in the
IOLTA account. This is called into question, however, by assertions made within plaintiffs’
complaint indicating:

       9. Benner’s obligation was to communicate to plaintiffs that the check had
       arrived, obtain their endorsement, deposit the checks in his Trust or Iolta account
       and upon the checks clearing, distribute funds to plaintiffs for their portion of the
       settlement and distribute to others any obligation plaintiffs were required to pay
       out of the settlement funds.



                                               -6-
The complaint states that it was the expectation of Abbonizio and the Hulslanders that the checks
would be deposited in the IOLTA account. Plaintiffs’ retainer agreement also indicated the
inclusion of the minor children, with Abbonizio signing as the adult on their behalf. Hence,
although the $400,000 check was deposited into the IOLTA account with an unauthorized
signature, pursuant to the allegations within the complaint, the funds did reach their intended
destination or payee. There is no dispute or suggestion by plaintiffs that Benner was not
functioning as their legal representative; as such, it would be the expectation of the insurance
companies issuing the checks that the individual or entity intended to receive the payment was
legal counsel, on behalf of his clients. Thus, it must be concluded, based on the factual
circumstances and plaintiffs’ pleadings, that the checks were written with the intended purpose
of being remitted to plaintiffs’ legal counsel or representative for subsequent distribution.

        In addition, to establish the intended-payee defense it is necessary to demonstrate that the
loss suffered was not the proximate cause of the improper payment. Plaintiffs’ contend that had
the bank refused to negotiate the check due to the unauthorized signature, the check would not
have been placed into the IOLTA account and, therefore, would not have been accessible for
Benner’s fraud and conversion. This argument is without merit or legal support. The check was
placed into the IOLTA account; at this juncture the banks had no control regarding the
distribution of the proceeds. The loss incurred by plaintiffs is the immediate, direct and
proximate result of Benner’s fraud and wrongdoing.

        Plaintiffs’ contention that the deposit of the check into the IOLTA account comprises the
proximate cause of the loss is too attenuated to be viable. Our Supreme Court has defined
“proximate cause as that which in a natural and continuous sequence, unbroken by any new,
independent cause, produces the injury, without which such injury would not have occurred. An
intervening cause breaks the chain of causation and constitutes a superseding cause which
relieves the original actor of liability; unless it is found that the intervening act was reasonably
foreseeable. If reasonable minds could not differ regarding the proximate cause of a plaintiff’s
injury, courts should decide the issue as a matter of law.” Black v Shafer, 499 Mich 950; 879
NW2d 642 (2016) (citations and quotation marks omitted). Defendants’ negotiation or
acceptance of the check did not constitute a proximate cause of the harm suffered by plaintiffs.
Rather, it was Benner’s misuse and fraud in withdrawing the entirety of the funds from the
IOLTA account that constituted an intervening cause of the injury, breaking the chain of
causation and alleviating defendants’ liability.

        Plaintiffs further assert that the grant of summary disposition was premature and that they
should have been afforded additional discovery to depose Benner regarding his intentions. The
trial court rejected plaintiffs’ request for continued discovery, impliedly indicating that the issue
before the trial court comprised a matter of law. “[A] grant of summary disposition may be
premature if the party opposing the motion has not had a reasonable opportunity to conduct
discovery.” Huntington Nat’l Bank v Daniel J Aronoff Living Trust, 305 Mich App 496, 513;
853 NW2d 481 (2014). “Whether a motion for summary disposition under this rule would be
premature depends on whether further discovery stands a fair chance of uncovering factual
support for the litigant’s position.” Id. (citation and quotation marks omitted).

        This is not a situation where there was a lack of discovery. Rather, plaintiffs’ suggest
that the ability to depose Benner to uncover his intentions with regard to the checks and deposits

                                                -7-
would permit them to ascertain relevant information for the trial court’s consideration. The trial
court rejected the need for the discovery requested, noting the unlikely probability that the
information sought could be obtained given Benner’s current criminal charges and his assumed
reluctance to engage in any admissions or statements that would further implicate his criminal
liability and the lack of relevance of Benner’s intent to the legal issue before the trial court. As
such, the trial court did not err in finding that the continuation, or extension, of discovery was
unlikely to assist the trial court in ruling on the motion for summary disposition or develop
information pertinent to the legal issue before it.

         Based on the above analysis, this Court need not address plaintiffs’ additional challenge
to the trial court’s grant of summary disposition premised on jurisdictional requirements.

       Affirmed.



                                                             /s/ Deborah A. Servitto
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Karen M. Fort Hood




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