                          STATE OF MICHIGAN

                           COURT OF APPEALS



BAGLEY & LANGAN PLLC,                                              UNPUBLISHED
                                                                   April 17, 2018
               Plaintiff-Appellant,

v                                                                  No. 337660
                                                                   Oakland Circuit Court
JOYA GARLAND as Trustee of the QUINTINA                            LC No. 2016-155770-CZ
LASHAUN AUSTIN IRREVOCABLE SPECIAL
NEEDS TRUST,

               Defendant-Appellee.


Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ.

PER CURIAM.

       Plaintiff, Bagley & Langan, PLLC, appeals as of right the circuit court’s opinion and
order granting the motion for summary disposition filed by defendant, Joya Garland, as trustee of
the Quintina LaShaun Austin Irrevocable Special Needs Trust, and guardian of Quintina
LaShaun Austin. For the reasons stated herein, we affirm.

                          I. FACTS AND PROCEDURAL HISTORY

        In 2003, Quintina, a minor at the time, was severely injured in an automobile accident.
Her mother, Carolyn Austin, subsequently retained plaintiff to represent Quintina in her first
party no-fault action. The legal services contract she signed provided that plaintiff would be
entitled to “the larger of $300 per hour for all work performed to the date of termination or 33
1/3 % of the last offer of settlement, arbitration award, mediation award or judgment prior to
termination.” Ultimately, plaintiff filed the no-fault action on Quintina’s behalf, which resulted
in a settlement order entered by the Wayne Circuit Court on February 17, 2011. The order
required the defendant insurance companies to fund structured settlement payments of $7,500
per month to a trust created for Quintina, and to pay the sum of $750,000 to the trust as seed
money. Further, the order directed the defendant insurance companies to pay attorney fees to
plaintiff in the amount of $750,000.

        The Quintina LaShaun Austin Irrevocable Special Needs Trust (the Trust) was
established in March 2011, with Carolyn as the initial trustee. However, in 2015, Carolyn was
discharged as Quintina’s guardian and replaced by defendant, who then filed, in Wayne Probate
Court, separate petitions for removal of Carolyn as trustee of the Trust, and supervision of the
Trust. Both asserted that Patrick Bagley, a member of plaintiff’s firm serving as Carolyn’s
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attorney, had actually been the one managing the Trust from its inception, and that Trust assets
had been depleted from $750,000 to $177,682.71.

        The probate court entered an order granting defendant’s petition for supervision on
August 31, 2016, stating “that the Structured Settlement periodic payments from MetLife in the
amount of Seven Thousand Five Hundred ($7,500.00) dollars and all other funds received on
behalf of or for the benefit of [the Trust], received by Attorney Patrick Bagley, shall be deposited
into [the Trust]” and “that no withdrawals shall be made from any of the bank accounts and/or
Investment Accounts titled in the name of [the Trust].” The probate court also entered an order
on September 13, 2016, removing Carolyn as trustee of the Trust and appointing defendant as
her successor. The order directed Patrick Bagley to file a complete accounting of the Trust
funds, finding that Carolyn had never really controlled the funds, and that Patrick Bagley
admitted to removing $2,500 each month from MetLife’s $7,500 monthly payment to the Trust
supposedly “for the balance of the one-third Attorney fee he believes he is owed.” Plaintiff filed
a claim of appeal from the order in this Court, which was ultimately dismissed for failure to
pursue the appeal in conformity with the rules. In re Quintina LaShaun Austin Trust &
Guardianship,” unpublished order of the Court of Appeals, entered January 11, 2017 (Docket
No. 334890).

        Meanwhile, on October 28, 2016, plaintiff filed the present action in the Oakland County
Circuit Court against the Trust and defendant, as trustee and guardian of Quintina, claiming
breach of contract, unjust enrichment, and promissory estoppel. In so doing, plaintiff alleged
that: (1) the legal services contract Carolyn signed stipulated that it would receive 1/3 of any
settlement obtained as attorney fees, (2) the settlement order from the no-fault action awarded
plaintiff only partial attorney fees, (3) the remaining attorney fee balance was to be paid through
periodic monthly payments of $2,500, and (4) the Trust ceased making the payments in violation
of the agreement.

        In response, defendant filed a motion for summary disposition pursuant to MCR
2.116(C)(6), arguing that plaintiff’s complaint should be dismissed because the probate and
circuit court cases involved the same parties and the same claims. Specifically, she asserted that
plaintiff was an interested party in the probate action, and both cases involve the attorney fees
allegedly owed to plaintiff. Further, defendant argued, “It is clear that the payment of attorney
fees from the Trust relates to administration of the same, which, pursuant to MCL 700.1302, is
exclusively within the jurisdiction of the probate court.”

         Plaintiff, in turn, filed a brief arguing that the probate proceedings were no longer
pending, it was never a party to the probate action as it acted only as a representative of Carolyn
and Quintina, and the probate and circuit court actions do not involve the same claims because
its circuit court complaint alleged facts related to the legal services contract never litigated in the
probate action. Further, plaintiff stated: “Nowhere in Plaintiff’s instant breach of contract claim
does it describe a right to disbursement from the trust. Rather, Plaintiff asserts it has a right to
33 1/3 % ($2,500 of the $7,500 monthly payments), pursuant to the contract for legal services, or
the payments made from MetLife prior to its deposit into the trust.”

        Ultimately, on March 10, 2017, the circuit court granted the motion for summary
disposition pursuant to MCR 2.116(C)(6), and dismissed plaintiff’s complaint without prejudice.

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In so doing, it reasoned that the probate action was still pending at the time of its decision
because the probate court docket sheet indicated the case remained open, and the probate court
continued its supervision of the Trust, that plaintiff was an interested party in the probate action,
and that the resolution of both actions would require examination of the same operative facts.

                                          II. ANALYSIS

       Plaintiff now challenges the circuit court’s decision. “A trial court’s decision to grant
summary disposition under MCR 2.116(C)(6) is reviewed de novo.” Valeo Switches &
Detection Sys, Inc v Emcom, Inc, 272 Mich App 309, 311; 725 NW2d 364 (2006). To determine
whether summary disposition was warranted, we must consider the “affidavits, together with the
pleadings, depositions, admissions, and documentary evidence then filed in the action or
submitted by the parties[.]” MCR 2.116(G)(5).

       A court may grant summary disposition under MCR 2.116(C)(6), and dismiss a plaintiff’s
claims, when “[a]nother action has been initiated between the same parties involving the same
claim.” MCR 2.116(C)(6); Valeo, 272 Mich App at 311. The rule is a “codification of the
former plea of abatement by prior action,” the purpose of which is to prevent harassment with
new suits brought by the same plaintiff and involving the same questions at issue in already-
pending litigation. Fast Air, Inc v Knight, 235 Mich App 541, 545-546; 599 NW2d 489 (1999).

        Plaintiff first asserts that the circuit court improperly granted summary disposition
because at the time the court decided the motion, the probate action was no longer pending. This
Court has determined that an action cannot be dismissed pursuant to MCR 2.116(C)(6) unless the
other action at issue is “pending at the time of the decision regarding the motion for summary
disposition.” Fast Air, Inc, 235 Mich App at 549. But, “a pending appeal is equivalent to a
pending action.” Planet Bingo, LLC v VKGS, LLC, 319 Mich App 308, 323-324; 900 NW2d 680
(2017).

        The probate court entered its order for supervision of the Trust on August 31, 2016, and
its order appointing defendant as trustee on September 13, 2016, from which plaintiff appealed.
As this Court did not dismiss plaintiff’s appeal until January 11, 2017, there is no question that
the probate action remained pending at the time plaintiff filed the present action in circuit court
on October 28, 2016.1 However, the circuit court did not actually decide defendant’s motion for
summary disposition until March 10, 2017. Accordingly, we must determine whether the
probate action was still pending on that date.

       The probate court’s August 31 order mandated that no withdrawals be made from any
Trust accounts “until further Order of the Court,” and its September 13 order directed Patrick
Bagley to file a complete accounting of the Trust’s funds prior to a hearing scheduled for
November 2016. Thus, the orders did not dispose of the probate action, or close the case.
Further, through its August 31 order, the probate court took supervision of the Trust, and a


1
 Plaintiff specifically acknowledges that the probate action was pending at the time it filed the
complaint.


                                                -3-
probate court docket sheet defendant attached to her summary disposition reply brief listed the
status of the case as open with a hearing scheduled for March 21, 2017, several days after the
circuit court decision on the motion for summary disposition. As plaintiff offers no evidence or
meaningful argument to the contrary, stating only that the probate proceedings were pending at
the time it filed its breach of contract claim, but no longer pending at the time of the motion
hearing, we hold that the probate action was still pending when the circuit court granted
summary disposition.

         Plaintiff next argues that the circuit court improperly dismissed its complaint pursuant to
MCR 2.116(C)(6) because it was not itself a party to the probate action. Specifically, it asserts
that, in the probate court, it acted only as a representative of Carolyn and Quintina.

        Again, to warrant summary disposition under MCR 2.116(C)(6), the two cases at issue
must be “between the same parties.” MCR 2.116(C)(6). However, not all parties need be
identical. Fast Air, Inc, 235 Mich App at 545 n 1. In Fast Air, Inc, 235 Mich App at 544-545,
citing to Black’s Law Dictionary (5th ed), this Court reasoned that “ ‘[a] party to an action is a
person whose name is designated on record as plaintiff or defendant.’ ” (Quotation marks
omitted.) However, this definition is inapplicable to the probate action at issue, in which
defendant petitioned the probate court for supervision of the Trust and removal of Carolyn as
trustee, and no parties were formally designated plaintiffs or defendants. More relevant is this
Court’s definition of “party” in Dearborn Hts Sch Dist No 7 v Wayne Co MEA/NEA, 233 Mich
App 120, 127; 592 NW2d 408 (1998), as “one who was directly interested in the subject matter,
and who had a right to defend in, or control, the proceedings, and who had a right to appeal from
the judgment.”2 See also Black’s Law Dictionary (10th ed) (defining “interested party” as one
“who has a recognizable stake (and therefore standing) in a matter”).

        Using the above definitions, we have no doubt plaintiff was a party to the probate action.
Defendant specifically alleged in both probate court petitions that Patrick Bagley, a member of
plaintiff’s firm and attorney for Carolyn in that capacity, had actual control over the Trust funds.
And there is no question plaintiff was negatively affected by the probate court’s August 31 order
directing that the monthly structured settlement payments be deposited into the Trust in full, as it
could no longer retain a portion of the payments for its allegedly outstanding attorney fees.
Moreover, although ultimately dismissed, plaintiff appealed the probate court’s orders.3




2
  This Court used the same definition of “party” in Schang v Schang, unpublished per curiam
opinion of the Court of Appeals, issued November 3, 2005 (Docket No. 263059), a factually
similar case, to uphold a circuit court’s order granting summary disposition pursuant to MCR
2.116(C)(6). Although we recognize that unpublished decisions are not precedentially binding
under the rule of stare decisis, MCR 7.215(C)(1), they may “be considered instructive or
persuasive.” Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d
133 (2010).
3
    See MCR 5.801(A), which provides that an interested person may appeal a probate court order.


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        Finally, plaintiff argues that the circuit court erred when it granted summary disposition
because the probate and circuit court actions did not involve the same claims. In so doing, it
asserts that it never “contend[ed] that the source of attorney fee payments need[ed] to come from
the Trust itself.”

        This argument is disingenuous and lacks merit. Claims between two actions need not be
identical for summary disposition to be proper under MCR 2.116(C)(6). Instead, “the two suits
‘must be based on the same or substantially the same cause of action.’ ” J D Candler Roofing
Co, Inc v Dickson, 149 Mich App 593, 598; 386 NW2d 605 (1986) (citation omitted). To
determine if two actions involve the same claim, a court should look to whether “[r]esolution of
either action will require examination of the same operative facts.” Id. at 600-601.4

        Resolution of the probate and circuit court actions here would require examination of the
same operative facts. For its breach of contract, unjust enrichment, and promissory estoppel
claims in the circuit court, plaintiff alleged that pursuant to the 2005 legal services contract, it
was entitled to additional attorney fees, and that the Trust ceased making these additional
attorney fee payments in violation of the agreement. And although plaintiff’s complaint did not
assert that the Trust may be the only source of the attorney fees, plaintiff brought the suit against
defendant and the Trust itself rather than Carolyn, who signed the contract, and claimed that the
remaining attorney fee balance was to be paid through periodic monthly payments of $2,500.

        Comparatively, the probate action concerned the proper administration of and distribution
of funds to the Trust, and the court directly addressed Patrick Bagley’s monthly removal of
$2,500 for the supposedly outstanding attorney fees owed to plaintiff from the structured
settlement payments awarded to the Trust. Thus, to determine whether funds were properly
distributed to the Trust, the probate court would likely examine the same 2005 legal services
contract at issue in the circuit court action. Moreover, we note that the probate court has legal
and equitable jurisdiction of proceedings concerning the administration and distribution of a trust
in accordance with MCL 700.1302, and concurrent legal and equitable jurisdiction to “[h]ear and
decide a contract proceeding or action by or against an estate, trust, or ward” pursuant to MCL
700.1303(1)(i).




4
  We acknowledge that this Court, in two recent unpublished decisions, disavowed the Court’s
reasoning in J D Candler, concluding that the decision need not be followed as it was decided
before November 1, 1990, and holding that “ ‘the same claim’ must be read narrowly as the one
and only same claim.’ ” Jarrett-Cooper v United Airlines, Inc, unpublished per curiam opinion
of the Court of Appeals, issued September 19, 2017 (Docket Nos. 330248; 331383; 333353;
333836), p 8; Esch v Yacob, unpublished per curiam opinion of the Court of Appeals, issued
June 13, 2017 (Docket No. 332933), p 10. Nevertheless, as a published opinion of this Court, we
choose to adhere to the law set forth in J D Candler under stare decisis. MCR 7.215(C)(2).


                                                -5-
Affirmed.



                  /s/ David H. Sawyer
                  /s/ Joel P. Hoekstra
                  /s/ Christopher M. Murray




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