                          STATE OF MICHIGAN

                          COURT OF APPEALS



In re Estate of HELEN M. PAYEA.


NORMAN C. PAYEA II,                                               UNPUBLISHED
                                                                  April 12, 2016
              Petitioner-Appellant,

v                                                                 No. 325391
                                                                  Iosco Probate Court
GEORGE R. PHILLIPS, Personal Representative                       LC No. 12-002605-DA
of the Estate of HELEN M. PAYEA,

              Respondent-Appellee,
and

RICHARD P. PAYEA,

              Appellee.


Before: BOONSTRA, P.J., and WILDER and METER, JJ.

PER CURIAM.

        Appellant appeals as of right from an order of the probate court denying his petition to
compel return of funds and to appoint him as special personal representative of the decedent’s
estate. We affirm.

        Appellant and appellee Richard Payea are the sons of the decedent, who died on January
4, 2011. The decedent’s will named them co-personal representatives of the estate. On
November 27, 2012, appellant was appointed the personal representative of the estate.
Thereafter, appellee Payea filed three petitions seeking removal of appellant as personal
representative, probate of the decedent’s will, and supervised administration. On May 9, 2013,
appellant and appellee Payea stipulated to an order admitting the will to probate, adjourning
appellee Payea’s petitions indefinitely, and allowing appellant to continue as personal
representative of the estate. Subsequently, appellee Payea renewed his petition to remove
appellant as the personal representative. Appellant was removed, and appellee George Phillips
was appointed as the new personal representative. On November 3, 2014, appellant filed his
petition to compel return of funds, which the probate court denied.


                                              -1-
       Appellant argues that the probate court improperly ruled on his petition to compel return
of funds at a pretrial hearing, without giving him proper notice. Appellant did not raise this issue
below, so review is for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8;
761 NW2d 253 (2008).

        During the pretrial hearing on November 17, 2014, appellant, through his attorney,
initiated the discussion on his petition to compel the return of funds. Counsel argued that the
limitations period was going to expire on December 17 and that he needed to have appellant
appointed as a special representative in order to bring the claim. Counsel stated that appellant
would be “a special plaintiff” and “he’s the only logical person to bring [the claim].” Counsel
stated that “[s]omething has to be done before . . . December 17, either what’s been done has to
be ratified and affirmed for that purpose, or something needs to be re-filed and then [appellant],
either [appellant] is appointed as special P.R. for limited purposes of bringing this claim, or he’s
not. If he’s not, then I think it’s over.” The following was stated:

               The court: . . . I guess where we’re at right now, [appellant’s attorney is]
       asking me to make some sort of decision on, I guess it would be on the petition to
       compel the return of assets and the undue influence claim. Which invokes the, or
       creates within it a statute of limitations issue.

                                                   ***

              The court: [Counsel], . . . are you asking me for, I guess, what are you
       asking me, the court regarding the petition?

               Appellant’s attorney: Two things basically. One[,] recognize [appellant]
       as the real party and [sic] interest on this claim and appoint him special fiduciary
       for the sole purpose of bringing the claim. And two, recognize the petition that
       has already been filed as satisfying or tolling the statute of limitations, which then
       precludes us having to repackage it, re-file it and everybody having to re-answer
       it. With that, [appellant] can have his day in court on January 28.

        The attorney was pressing the court to make a decision on the petition he had filed,
despite the fact, as appellant notes in his appellate brief, that the hearing was scheduled as a
“pretrial conference.” The court proceeded to make that decision, stating that it would not
appoint appellant a personal representative “for the purposes of chasing this claim . . . .” When
asked at the end of the hearing if he had “[a]nything else,” counsel replied, “[n]o thanks.”
Essentially, counsel asked for a ruling and it got that ruling. “[E]rror requiring reversal may only
be predicated on the trial court’s actions and not upon alleged error to which the aggrieved party
contributed by plan or negligence.” Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d 675
(2003). Accordingly, we find no basis for reversal.

       For this same reason we reject appellant’s argument that he was denied the opportunity to
pursue his claim through an evidentiary hearing when the court ruled at the pretrial hearing.

        Appellant also argues that the probate court improperly dismissed his petition because he
filed his witness and exhibit lists three days late. Appellant’s argument is misplaced because,

                                                -2-
while the trial court mentioned an “arguably tardy witness list” (emphasis added) during
arguments and in its written ruling made an unclear reference to appellant’s “failure to follow the
[s]cheduling [o]rder,”1 the trial court simply did not state that it was dismissing the petition
because of the late filing of the lists. The trial court’s written order stated that the petition was
denied “for reasons stated on the record . . . .” The court stated the following in dismissing
appellant’s petition:

               I think the personal representative has done an extremely professional job
       in gathering and marshalling the assets and doing things that need to be done.
       Has provided benefit to both of the Payea brothers and it does not seem that either
       one would be inclined to do that for the other. And as far as the statute of
       limitations goes the court is not inclined to toll that. I think that the parties have
       had ample time to bring their claims and settle their scores and as I stated at our
       last hearing this matter needs to be resolved and therefore the petition is denied
       and the appointment of Norman is denied. I think the laches argument, even
       though we didn’t get into it today[,] certainly applies to somebody who served as
       personal representative for the length of time that Norman did. . . . I’m not going
       to grant the petition or appoint Norman special personal representative for the
       purposes of chasing this claim, which the person that I think has the best grip on
       the facts and the assets and who has done a really remarkable job as personal
       representative indicates to me that he doesn’t believe it’s in the best interest of the
       estate. Therefore, it’s denied.

Appellant’s argument is unavailing.2




1
  We note that the scheduling order encompassed items other than witness lists; for example, it
stated that claims regarding the estate were to be filed by November 3, 2014.
2
  At any rate, we note that, in the relevant scheduling order, the court ordered the parties to file
their witness and exhibit lists by November 3, 2014. It also ordered that witness lists contain
“names, addresses, phone numbers, and a summary of the testimony in sufficient detail so as to
provide sufficient detail to the other party . . . .” Appellant did not file his witness list or exhibit
list until November 6, 2014. The witness list specifically identified 29 persons, but only
provided addresses for 11 of them and phone numbers for nine (including both appellant and
appellee Payea). In addition, the witness list was devoid of any summary of the witnesses’
proposed testimony, leaving appellees in the position of having to guess what they might offer of
relevance.

       Further, appellant’s amended witness list also omitted addresses and phone numbers for
15 of the 25 specifically listed witnesses. As for summaries of the proposed testimony, the
summaries of 14 of the 25 witnesses were set forth largely in the following generic format:

               . . . testimony will support Petitioner’s allegations of Decedent’s condition
       prior to her death, that Richard Payea was in a fiduciary relationship with the


                                                  -3-
        Appellant argues that the court erred in ruling that his petition be dismissed because of
his failure to bring his petition during his tenure as personal representative. Appellant
emphasizes that he was only the personal representative for 8 1/2 months. “This Court reviews
the probate court’s factual findings for clear error and its dispositional rulings for an abuse of
discretion. In re Lundy Estate, 291 Mich App 347, 352; 804 NW2d 773 (2011). It is true that
the court noted that “the laches argument . . . certainly applies to somebody who served as
personal representative for the length of time Norman did.” However, this statement must be
read in context. What appellee Phillips argued before the court’s ruling was that appellant had
failed to raise his claim until almost four years following the decedent’s death. “Now if this was
a real claim,” he argued, “where they had real something [sic] to be concerned about, why wasn’t
this done in the first year, or the second year, or even the third year? But now, it’s almost four
years and we’re talking about a last minute [effort].” Thus, the court was essentially noting
appellant’s tenure as personal representative in the context of the 22 months that had passed
before he was appointed. Once again, we find no basis for reversal.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Patrick M. Meter




       Decedent, and that Richard received certain financial benefits from the Decedent
       and property of the Estate which form the basis of Petitioner’s claims of undue
       influence and conversion.



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