                           STATE OF MICHIGAN

                            COURT OF APPEALS



Estate of STANLEY MORRIS,                                            UNPUBLISHED
                                                                     May 1, 2018
               Plaintiff-Appellant,

v                                                                    No. 336304
                                                                     Oakland Probate Court
MARY MORRIS,                                                         LC No. 2013-350325-DE

               Defendant-Appellee.


Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ.

PER CURIAM.

       This case, which involves a dispute between siblings regarding the bank account of their
deceased father, comes before us a second time. In the instant appeal, plaintiff, the Estate of
Stanley Morris, appeals as of right the probate court’s order ruling that defendant, Mary Morris,
was entitled to a judgment of no cause of action against plaintiff. For the reasons set forth in this
opinion, we affirm.

                                       I. BACKGROUND

       This Court’s previous opinion set forth the relevant substantive and procedural facts as
follows:

              The decedent, Stanley Morris, was the father of four children: (1) Mel,
       who served as the personal representative of the decedent’s estate, (2) defendant,
       (3) John Christopher “Chris” Morris, and (4) Robert Morris. In 2002, the
       decedent executed a will that distributed his estate equally among his four
       children. The decedent’s most significant asset was his home in Livonia. The
       decedent sold his home in 2006 and deposited the proceeds into one of his
       accounts with Bank of America (BoA). Mel was listed as a joint owner of the
       decedent’s BoA accounts. According to Mel, he was named as a joint owner of
       the BoA accounts for the decedent’s convenience. Mel never used the account
       funds for his own purposes, and he considered the funds the property of the
       decedent. Defendant was later added as a joint owner of the BoA accounts.
       Defendant’s name began to appear on the account statements in March or April
       2007, but the documents making her a joint owner of the accounts were never
       produced. Mel produced a signature card dated October 17, 2008, but the card


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       does not provide any information about defendant’s status as a joint account
       owner.

               From April 2007 until the decedent’s death in June 2011, defendant
       depleted the funds in the BoA accounts. Defendant does not deny that the funds
       were used mostly to pay expenses or make purchases for herself and her daughter,
       but she contends that she was authorized to do so because she was a joint owner
       of the accounts and that she had decedent’s permission to make purchases for her
       and her daughter’s benefit. Plaintiff brought this action for conversion, fraud, and
       related torts arising from defendant’s use of the funds. The case proceeded to a
       bench trial. After plaintiff rested, the trial court granted defendant’s motion for
       involuntary dismissal, stating:

                       . . . I am going to grant the motion to dismiss the case. I do
               agree with [defense counsel] that the plaintiff has not met his
               burden of proof. You did not present any evidence that would
               rebut the presumption of a joint account, you did not provide any
               of – there’s no evidence submitted or supported by testimony of a
               breach of a fiduciary duty, conversion, misrepresentation, silent
               fraud, negligence, account of convenience or undue influence.

                       And moreover, with regard to your argument about the Will
               that says split the home four ways, that Will was in 2002. That
               doesn’t mean anything. He could spend – he could have sold it in
               2003 and spent it completely by 2004. How would that change
               things, the money’s not there?

                       But that’s not the point. The point is, and while – perhaps
               everything alleged is true, you have not met your burden of proof,
               and therefore, I’m going to dismiss this case. [Estate of Morris v
               Morris, unpublished per curiam opinion of the Court of Appeals,
               issued August 11, 2016 (Docket No. 326507), pp 1-2 (alterations
               in original).]

        Plaintiff appealed as of right the trial court’s order granting defendant’s motion for
involuntary dismissal. Id. at 1. On appeal, this Court affirmed in part, reversed in part, and
remanded the matter for further proceedings. Id. at 13. Specifically, this Court reversed “the
portion of the trial court’s order dismissing plaintiff’s claim for conversion.”1 Id. at 11. In
reaching this holding, this Court first concluded in pertinent part that the joint account act, MCL
487.711 et seq. did not apply because there was no evidence that the decedent created a statutory
joint account pursuant to the requirements of the joint account act. Id. at 4-5. Next, this Court


1
  This Court specifically did not reverse the trial court’s dismissal of plaintiff’s claims for fraud,
misrepresentation, silent fraud, and breach of fiduciary duty because plaintiff did not appeal the
trial court’s dismissal of those claims. Estate of Morris, unpub op at 11.


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analyzed the scope of the presumption of joint ownership and survivorship contained in MCL
487.703 by construing the statutory language. Id. at 5-8. On this point, this Court explained as
follows:

               MCL 487.703 does not provide that all joint accounts carry the
       presumption of joint ownership and survivorship; it provides this presumption
       only when the deposit is made in the prescribed form. We conclude that this
       language, properly interpreted, required evidence that the decedent created the
       joint account with the intent to convey to defendant joint ownership and right of
       survivorship before the presumption of joint ownership and survivorship could
       arise. In the absence of such proof, there can be no prima facie evidence to rebut,
       and the ordinary standard of proof for civil cases, preponderance of the evidence,
       governs the outcome. In that situation, plaintiff could prevail by proving by a
       preponderance of the evidence that the decedent did not intend for ownership to
       vest in defendant. [Id. at 8 (emphasis added).]

Finally, this Court concluded that in the instant case, there was

       no documentary evidence to confirm either the presence or absence of the
       survivorship language in the documents creating the joint accounts with defendant
       as a joint owner. Accordingly, there is no presumption of joint ownership with
       rights of survivorship. The trial court erred when it stated that plaintiff did not
       present evidence “that would rebut the presumption of a joint account.” Rather,
       the trial court should have weighed the conflicting evidence regarding the
       decedent’s intent in creating the joint account. [Id. at 10.]

We explained the trial court’s role on remand as follows:

               The trial court, as the finder of fact, was responsible for weighing the
       witnesses’ testimony and deciding the credibility contest between Mel and
       defendant. The trial court’s statement that “perhaps everything alleged is true,
       you have not met your burden of proof,” indicates that the court did not make a
       determination of the witnesses’ credibility. The court granted involuntary
       dismissal because it believed that plaintiff did not meet its burden of proof to
       rebut the presumption of a joint account. The trial court’s focus on rebuttal of the
       presumption was erroneous. The proper inquiry was whether plaintiff proved that
       the decedent did not intend for ownership of the funds to vest in defendant.
       Plaintiff’s evidence was sufficient to support an inference that he did not.
       Consequently, we remand this case to the trial court for reconsideration, without
       applying a presumption of joint ownership. [Id. at 10-11.]

        On remand, the trial court issued an opinion and order, in which it stated that it would
reconsider the case without applying a presumption of joint ownership, pursuant to the
instructions of this Court. The trial court noted that the focus of the dispute in this matter was
the ownership of the contents of the decedent’s bank account from 2006 until his death on June
5, 2011, and the trial court proceeded to summarize the testimony from trial.


                                                -3-
        The trial court found that Mel, defendant, and the decedent were all joint title holders of
the BoA accounts at issue, and the trial court stated that the two trial witnesses who had
information about the ownership of the account were Mel and defendant. Further, the trial court
found that the “determination of the credibility of Mel Morris and that of [defendant] is
dispositive and will resolve this case.” More specifically, the trial court found that Mel’s
testimony on “key issues” was “not credible” and that defendant’s testimony on “key issues” was
“credible” and supported by bank records submitted as an exhibit.

        In discussing Mel’s testimony, the trial court found that Mel testified that he was added to
the joint bank account as a matter of convenience only and that he believed all of the money in
the account belonged to the decedent because it was the decedent’s account. The trial court
further found that Mel refused to admit that the amount of money that was deposited into the
account between April 2007 and the decedent’s death exceeded the amount of the decedent’s
total income during this period, even when including the proceeds from the real estate sale as
part of the decedent’s total income. The trial court also found that Mel failed to otherwise
explain this discrepancy. Based on this testimony, the trial court additionally found that Mel’s
testimony was not credible on the issue whether deposits into the account were made solely by
the decedent. The trial court further found that Mel’s testimony did not establish that the money
deposited into the BoA account during the relevant time period was the exclusive property of the
decedent and that it had not been established that the decedent was the sole source of the funds in
the account or that the account was purely an account of convenience.

        In discussing defendant’s testimony, the trial court found that defendant testified that she
did not want to use the joint bank account for all her living expenses but that the decedent
wanted her to do so. The trial court found that defendant also testified that the decedent told her
that she did not need to ask permission to use the funds in the joint account. The trial court
further found that considering the trial testimony as a whole, it was evident that the decedent had
always supported defendant and her daughter, Lindsay. Additionally, the trial court found that
defendant’s testimony that she took a “loan” from the account did not establish that the funds in
the joint account were not jointly owned because defendant also testified that she did not initially
believe that the funds were hers to freely use, that it was important to her to be self-sufficient,
and that it is not uncommon for an individual to take a “loan” from his or her own 401k. The
trial court further found that the proceeds from the real estate sale became commingled in the
joint account once they were deposited into that account. As previously stated, the trial court
found that defendant’s testimony was credible.

        In conclusion, the trial court found that the evidence showed that defendant accepted an
inter vivos gift from the decedent through the joint bank account, noting that both defendant and
the decedent used the funds from the account as each of them wished. The trial court found that
defendant accepted this gift in November 2007, based on the bank records. The trial court
further found that Mel refused to accept an inter vivos gift from the decedent. Next, the trial
court found that plaintiff had failed to present sufficient evidence to establish judicial estoppel
because no evidence was presented to show that defendant was required to amend her
bankruptcy schedule where her bankruptcy was filed in January 2007 and no evidence was
presented that she knew she was a joint account title holder until November 2007. Finally, the
trial court concluded that there were no funds to distribute from the joint account to the
decedent’s estate because defendant was the beneficiary of an inter vivos gift from the decedent.

                                                -4-
The trial court ruled that defendant was entitled to a judgement of no cause of action against
plaintiff.

       This appeal followed.

                                 II. STANDARD OF REVIEW

        “Findings of fact made by a probate court sitting without a jury will not be reversed
unless clearly erroneous.” In re Estate of Erickson, 202 Mich App 329, 331; 508 NW2d 181
(1993). “A finding is clearly erroneous when a reviewing court is left with a definite and firm
conviction that a mistake has been made, even if there is evidence to support the finding.” In re
Conservatorship of Brody, 321 Mich App 332, 336; ___ NW2d___ (2017) (quotation marks and
citation omitted). “The reviewing court will defer to the probate court on matters of credibility,
and will give broad deference to findings made by the probate court because of its unique
vantage point regarding witnesses, their testimony, and other influencing factors not readily
available to the reviewing court.” Id. (quotation marks and citation omitted). “Whether a trial
court followed an appellate court’s ruling on remand is a question of law that this Court reviews
de novo.” Schumacher v Dep’t of Natural Resources, 275 Mich App 121, 127; 737 NW2d 782
(2007).

                                         III. ANALYSIS

       In Osius v Dingell, 375 Mich 605, 611; 134 NW2d 657 (1965), our Supreme Court
explained the fundamental legal principles applicable to an inter vivos gift as follows:

                It may be stated generally that the three elements necessary to constitute a
       valid gift are these: (1) that the donor must possess the intent to pass gratuitously
       title to the donee; (2) that actual or constructive delivery be made; and (3) that the
       donee accept the gift. It is essential that title pass to the donee. As to delivery, it
       must be unconditional and it may be either actual or constructive; the property
       may be given to the donee or to someone for him. Such delivery must place the
       property within the dominion and control of the donee. This means that a gift
       inter vivos must be fully consummated during the lifetime of the donor and must
       invest ownership in the donee beyond the power of recall by the donor. As to
       acceptance, it is said that the donee is presumed to have accepted the gift where
       such is beneficial. [Citations omitted.]

        Joint bank accounts with rights of survivorship are typically created pursuant to statute,
and in such a situation, these transfers are treated as statutory creations rather than inter vivos
gifts. See Jacques v Jacques, 352 Mich 127, 134; 89 NW2d 451, 455 (1958) (“In Michigan the
vesting of title to funds in another by the creation of a joint bank account with right of
survivorship is a statutory method of transfer of title. While such a concept has some of the
aspects of a gift inter vivos, it is plainly not a common-law gift inter vivos because the donor
retains an element of control and the power of revocation.”).

       In the prior appeal in this case, this Court determined that “the decedent created the joint
account with the intent to convey to defendant joint ownership and right of survivorship before
the presumption of joint ownership and survivorship could arise” under MCL 487.703. This
                                                -5-
Court further determined that there was no documentary evidence to confirm the presence or
absence of survivorship language in the documents creating the joint account. Hence, this Court
concluded that the trial court needed to weigh the conflicting evidence on remand to discern the
decedent’s intent in creating the joint account. Estate of Morris, unpub op at 8, 10. As we also
noted in our prior opinion, our Supreme Court has explained that when the statutory
requirements in MCL 487.703 have not been fulfilled (i.e., as pertinent here, making a deposit in
a form that includes survivorship language), “we next inquire whether there was anything else in
the instrument itself or in the circumstances surrounding the creation of the joint account which
would afford any indication of the intent of the party or parties creating it.” Leib v Genesee
Merchants Bank & Trust Co, 371 Mich 89, 94; 123 NW2d 140 (1963); see also Estate of Morris,
unpub op at 8, quoting Leib, 371 Mich at 94.

        In Negaunee Nat’l Bank v Le Beau, 195 Mich 502, 503-504, 508; 161 NW 974 (1917),
our Supreme Court resolved a dispute between two siblings over the funds in their deceased
father’s bank account on the ground that the decedent had made an inter vivos gift to one of the
siblings, Sophia Charles, through the creation of a joint account with her. In reaching this
conclusion, our Supreme Court reasoned that the decedent had created in Charles “a present
estate in the fund, equal to his own, together with the sole right to said fund in case of his death”;
that the decedent “retained no more control over the fund than did his daughter, Sophia Charles”;
and that “either could have withdrawn the entire amount during the lifetime of the other.” Id. at
508. Although the Court mentioned a former statute that was substantially similar in language
and substance to the current MCL 487.703, the Court did not analyze the application of the
statute in Negaunee or resolve the appeal on that ground. Id. at 508-509.

        Additionally, “it is well settled that if there has been an actual or constructive delivery of
the subject-matter of the gifts, with the intent to vest title, the fact that the donor retains
possession of the same for any purpose is not sufficient to defeat the gift; nor is the gift defeated
by the fact that the donor reserved to himself the use or income from the subject-matter of the
gift.” Jackman v Jackman, 271 Mich 585, 589; 260 NW 769, 770 (1935) (quotation marks and
citation omitted). In Jackman, our Supreme Court held that a father’s assignment of mortgages
to his son was a valid gift even though the assignment documents were subsequently stored, until
after the father’s death, in a safety deposit box that was jointly held by both the father and son
and to which both the father and son had access, and the son did not collect the income on the
mortgages during his father’s lifetime. Id. at 587-589.

        In this case, the trial court found that defendant testified that the decedent wanted her to
use the funds in the joint bank account as she wished and that the decedent told her that she did
not have to ask for permission to use the funds in the joint account. The trial court found
defendant’s testimony on key issues related to the ownership of the funds in the joint account to
be credible, including defendant’s explanation for her use of the word “loan” when describing
certain uses of the money. Furthermore, the trial court found that Mel’s testimony relating to key
issues about the ownership of the joint account to be not credible. Based on the trial testimony,
we cannot say that the trial court’s factual findings were clearly erroneous. In re
Conservatorship of Brody, 321 Mich App at 336. Plaintiff essentially attempts on appeal to gain
another opportunity to impeach defendant’s credibility and argues that we should determine the
parties’ credibility in the first instance. However, this is contrary to the role of the appellate


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court and the deference that we afford to the probate court’s credibility determinations based on
the probate court’s superior position to make such judgments. Id.

        Accordingly, the facts as found by the trial court satisfy the elements of an inter vivos
gift, which was made from the decedent to defendant, because defendant had the full ability to
withdraw and use any or all of the funds in the joint account as she wished during her father’s
lifetime: i.e., the decedent intended to pass title to defendant, there was actual delivery, and
defendant accepted the gift. Osius, 375 Mich at 611; Negaunee Nat’l Bank, 195 Mich at 508.
The fact that the decedent simultaneously retained access to the funds in the joint account did not
make the gift invalid. Jackman, 271 Mich at 589. The trial court also found that Mel did not
accept a gift from the decedent because Mel testified that he was only added to the account for
convenience and that he did not believe that the money in the joint account was his. We also
cannot say that this factual finding is clearly erroneous. In re Conservatorship of Brody, 321
Mich App at 336. Without acceptance, there is no gift. Osius, 375 Mich at 611. Thus, the trial
court did not err by determining that defendant was the beneficiary of an inter vivos gift from the
decedent, that there were no funds to distribute to the estate as a result, and that defendant was
therefore entitled to a judgment of no cause of action against plaintiff. In re Conservatorship of
Brody, 321 Mich App at 336. We also conclude that the probate court appropriately followed
this Court’s remand orders, because in reconsidering the case, the probate court weighed the
conflicting evidence, determined the credibility of the witnesses, and discerned the decedent’s
intent with respect to the ownership of the disputed funds without applying a presumption of
joint ownership in the account. Schumacher, 275 Mich App at 127.

        Next, plaintiff argues that the probate court erred by ruling that the doctrine of judicial
estoppel did not prevent defendant from claiming ownership in the joint account funds.
However, plaintiff’s entire argument on appeal is based on plaintiff’s interpretation of an
affidavit that was never admitted into evidence at trial. Moreover, plaintiff does not cite any
legal authority or make any cogent legal argument to explain how the doctrine of judicial
estoppel is applicable to this specific factual scenario involving a joint bank account and gift
inter vivos where defendant received her interest at some point after filing for bankruptcy.
Plaintiff also does not cite any legal authority or offer any explanation of how the trial court’s
ruling on this issue was erroneous beyond apparently asking this Court to make factual
determinations de novo on appeal, contrary to the applicable standard of review. See In re
Conservatorship of Brody, 321 Mich App at 336. Furthermore, “[i]t is not enough for an
appellant in his brief simply to announce a position or assert an error and then leave it up to this
Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.” Goolsby v City
of Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984) (quotation marks and citation
omitted). “An appellant’s failure to properly address the merits of his assertion of error
constitutes abandonment of the issue.” Houghton ex rel Johnson v Keller, 256 Mich App 336,
339-340; 662 NW2d 854 (2003). Therefore, we conclude that this issue is abandoned.

       Next, plaintiff argues that the probate court found that defendant had asserted facts
contrary to her claim of ownership in the joint bank account when the probate court denied
defendant’s summary disposition motion at a July 2013 hearing, that the circuit court upheld this
ruling when defendant appealed, and that the law of the case doctrine therefore precluded the
probate court from finding defendant’s testimony at trial to be credible.

                                                -7-
        “Whether the law of the case doctrine applies is a question of law that we review de
novo.” Duncan v Michigan, 300 Mich App 176, 188; 832 NW2d 761 (2013). “Under the law of
the case doctrine, if an appellate court resolves a legal issue and remands to the trial court for
further proceedings, the legal question determined by the appellate court will not be decided
differently in a subsequent appeal in the same case if the facts remain materially the same.” In re
Wayne Co Treasurer, 265 Mich App 285, 297; 698 NW2d 879 (2005). In this case, the circuit
court merely denied defendant’s application for leave to appeal the probate court’s order denying
defendant’s motion for summary disposition. The circuit court did not make any decision on the
merits of the matter. Therefore, the circuit court did not resolve any legal issue, and the law of
the case doctrine is inapplicable under these circumstances. Id.

       Finally, plaintiff argues that the opinion and order of the probate court judge was the
product of judicial bias or prejudice.

        MCR 2.003(C) sets forth grounds for disqualifying a judge, and it provides in pertinent
part as follows:

               (1) Disqualification of a judge is warranted for reasons that include, but
       are not limited to, the following:

                      (a) The judge is biased or prejudiced against a party or
               attorney.

                      (b) The judge, based on objective and reasonable
               perceptions, has either (i) a serious risks of actual bias impacting
               due process rights of a party . . . or (ii) has failed to adhere to the
               appearance of impropriety standard set forth in Canon 2 of the
               Michigan Code of Judicial Conduct.

“[A]s a general rule, a trial judge is not disqualified absent a showing of actual bias or
prejudice.” Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 597; 640 NW2d 321 (2001)
(quotation marks and citation omitted). “[J]udicial rulings, in and of themselves, almost never
constitute a valid basis for a motion alleging bias, unless the judicial opinion displays a deep-
seated favoritism or antagonism that would make fair judgment impossible and overcomes a
heavy presumption of judicial impartiality.” Id. (quotation marks and citation omitted).
Furthermore,

                Repeated rulings against a litigant, even if erroneous, are not grounds for
       disqualification. The court must form an opinion as to the merits of the matters
       before it. This opinion, whether pro or con, cannot constitute bias or prejudice.
       [Id. at 597-598 (quotation marks and citation omitted).]

        In this case, the entire focus of plaintiff’s judicial bias argument is on plaintiff’s
disagreement with the probate court’s credibility findings. However, the mere fact that a judge
rules against a party does not demonstrate bias or the presence of deep-seated favoritism or
antagonism. Id. Plaintiff does not point to any fact beyond unfavorable rulings by the probate
court to demonstrate bias, and plaintiff therefore has failed to overcome the heavy presumption
of judicial impartiality. Id. at 597.
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Affirmed. No costs are awarded. MCR 7.219(A).



                                                /s/ Stephen L. Borrello
                                                /s/ Jonathan Tukel




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