            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



In re ESTATE OF SHIRLEY A. HUHTA.


KEITH BRIAN JUSTICE,                                              UNPUBLISHED
                                                                  July 18, 2019
              Plaintiff-Appellee,

v                                                                 No. 343863
                                                                  Houghton Probate Court
TINA MARIE DEFORGE,                                               LC No. 2016-025897-CZ

              Defendant-Appellant.


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

PER CURIAM.

        The parties are siblings disputing whether a large sum of money should have been
included as part of their deceased mother’s estate. Defendant appeals the trial court’s opinion
and order following a bench trial that the money was not a gift to defendant from the decedent
but rather became part of the decedent’s estate, to which plaintiff was entitled half. For the
reasons stated below, we affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Many of the facts of this case are undisputed. The parties are the children of decedent,
Shirley Huhta. Shirley was in poor health in 2012. In June 2012, she and defendant visited
Wells Fargo and opened a safe deposit box. According to defendant, they placed $122,000 of
Shirley’s money into the box. Only defendant’s name was on the box, and only defendant
retained a right of access to it. In July 2012, Shirley executed a will that equally divided her
estate between plaintiff and defendant. On that same day, she created a durable power of
attorney (DPOA) in which she named defendant as her attorney-in-fact. Sometime after the will
and DPOA were created, Shirley and defendant opened a joint checking account with rights of
survivorship. In December 2012, Shirley obtained a right of access to the Wells Fargo safe
deposit box and her name was added to the box. Defendant testified that in October 2013 she




                                              -1-
and Shirley withdrew $38,000 from the box for Shirley’s use. This left $84,000 in the deposit
box—the money at the center of this dispute.

       Shirley died in April 2014. Days after her death, defendant closed the safe deposit box,
removed the money, and brought it to her own house. In August 2014, defendant filed in the
probate court a petition for assignment of Shirley’s estate that made no reference to the $84,000.

         Separate from the present action, defendant went through divorce proceedings beginning
in 2015. As part of the divorce action, defendant submitted answers to interrogatories; she also
testified at a divorce hearing in May 2016. In the answers to the interrogatories and in her
testimony at the hearing, defendant referred to the $84,000 as her inheritance and claimed that
Shirley had left this money to her after her death. Defendant also claimed that $20,000 of the
$84,000 belonged to plaintiff as part of his inheritance and that she had been borrowing the
$20,000 with plaintiff’s permission because she did not have access to marital assets during the
divorce action. Defendant further stated that she had used a portion of the $84,000 to purchase
many expensive items, including a boat, trailer, and an ATV.

       Plaintiff filed the present action in December 2016 largely on the basis of defendant’s
statements made in the divorce action. Plaintiff claimed that he never agreed to loan defendant
$20,000, that he never received his inheritance, and that defendant improperly spent the $84,000.
He claimed that the $84,000 was part of Shirley’s estate and should have been equally divided
according to the terms of her will. 1

        In November 2017, plaintiff filed a motion for summary disposition under MCR
2.116(C)(10) (no genuine issue of mater fact), arguing that plaintiff was entitled to half of the
$84,000 based on defendant’s statements in the divorce action. In opposition, defendant argued
that the $84,000 was an inter vivos gift from Shirley and that defendant’s statements in the
divorce action were not inconsistent with her position in the present action. Defendant claimed
that Shirley wanted plaintiff to have his teeth repaired and a prepaid funeral arranged. Defendant
explained that the $20,000 that she referenced in the divorce action was an estimate of what
those services would cost.

        The trial court granted partial summary disposition and awarded plaintiff $17,000. The
parties agreed that defendant had already paid plaintiff $3,000. The trial court held that plaintiff
was entitled to at least the $20,000 that defendant referenced as a loan in the divorce action
minus $3,000.

       The trial court denied plaintiff’s motion as to the remaining issues, and the parties
proceeded to a bench trial. In addition to the parties, the court heard testimony from Gary



1
 Plaintiff alleged conversion/embezzlement, unjust enrichment, and fraud. Much of plaintiff’s
complaint involved allegations that defendant owed and violated a fiduciary duty to plaintiff.
With one exception, the portions of the trial court’s decision addressing the fiduciary issues are
not relevant to this appeal.



                                                -2-
Justice, the parties’ brother.2 Gary testified that he did not learn of the $84,000 until plaintiff
told him about it. He stated that when he asked defendant why she did not divide the money
with plaintiff, she replied that she had spent the money on her divorce and medical bills and
referred to the money as a “godsend.”

        In a written opinion, the trial court ruled that the $84,000 had not been a gift from Shirley
to defendant but had been part of Shirley’s estate. The trial court found untenable defendant’s
position that the money was a gift from Shirley given defendant’s statements in the divorce
action that the money was part of her inheritance. The court also found it significant that Shirley
accessed the funds in the safe deposit box, while defendant did not spend that money until after
Shirley’s death. Accordingly, the court ordered that plaintiff was entitled to half of the $84,000,
reduced by several outstanding debts that plaintiff owed Shirley at the time of her death.

                                             II. ANALYSIS

       Defendant first argues that the trial court clearly erred in determining that the $84,000
was not an inter vivos gift. We disagree.3

       We summarized the law regarding inter vivos gifts in In re Casey Estate, 306 Mich App
252, 263-264; 856 NW2d 556 (2014):

                   “[F]or a gift to be valid, three elements must be satisfied: (1) the donor
          must possess the intent to transfer title gratuitously to the donee, (2) there must be
          actual or constructive delivery of the subject matter to the donee, unless it is
          already in the donee’s possession, and (3) the donee must accept the
          gift.” Davidson v Bugbee, 227 Mich App 264, 268; 575 NW2d 574 (1997). “A
          gift inter vivos is not only immediate, but absolute and irrevocable.” In re Reh’s
          Estate, 196 Mich 210, 217; 162 NW 978 (1917). Delivery must be unconditional
          and must place the property within the dominion and control of the donee. Osius
          v Dingell, 375 Mich 605, 611; 134 NW2d 657 (1965). Additionally, an inter
          vivos gift “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.” Id.




2
    Gary testified that he told Shirley to leave him out of her will.
3
  Whether a party intended to gift property presents a question of fact. In re Rudell Estate, 286
Mich App 391, 404; 780 NW2d 884 (2009). Following a bench trial, we review the trial court’s
findings of fact for clear error. Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 195;
761 NW2d 293 (2008); MCR 2.613(C). Clear error occurs when “after a review of the record,
this Court is left with a definite and firm conviction that a mistake was made.” Lawrence v
Burdi, 314 Mich App 203, 220; 886 NW2d 748 (2016). Further, we give due regard “to the
special opportunity of the trial court to judge the credibility of the witnesses who appeared
before it.” MCR 2.613(C).



                                                    -3-
        In this case, the evidence showed that Shirley retained dominion and control over the
money in the safe deposit box. Although the safe deposit box was originally leased in
defendant’s name only, Shirley’s name was added to the box the same year. According to
defendant, she and Shirley later withdrew substantial funds from the box for Shirley’s use.
Defendant, on the other hand, did not use funds from the box for her own expenses until after
Shirley’s death. This indicates that Shirley did not intend to make an inter vivos transfer to
defendant but instead intended for the $84,000 to become part of her estate. The fact that the
safet deposit box was jointly held did not necessitate a finding that the money was a gift or that
there were rights of survivorship. When a safe deposit box lease does not explicitly “provide for
the passage of title of the contents of the box” but merely allows a joint right of access to the
box, the joint right of access “is one factor which may properly be considered in arriving at the
decedent’s intent regarding another’s interest in such contents.” City Bank & Trust Co, NA v
Leightner, 67 Mich App 247, 250; 240 NW2d 762 (1976). Having joint right of access does not,
by itself, “effect a change in ownership of the contents of the box . . . .” Id. Here, Shirley and
defendant’s actions with respect to the safe deposit box supported the trial court’s finding that
Shirley did not intend to irrevocably transfer the $84,000 to defendant as a gift.

        Defendant’s statements in the divorce action also undermined her position that the money
was a gift. Video recordings of the hearings in the prior divorce action were jointly admitted into
evidence at trial. Defendant testified in those proceedings that $84,000 left after Shirley’s death
was an inheritance, $20,000 of which was for plaintiff. At no time in those proceedings did
defendant refer to the $84,000 as a gift. Contrary to defendant’s argument on appeal, the trial
court did not improperly rely on judicial estoppel or res judicata to preclude her testimony in this
case. The court did not discuss or apply either doctrine. Rather, the court plainly evaluated the
credibility of defendant’s testimony in light of her prior inconsistent statements in the divorce
action.

        Defendant argues that the trial court erred in accepting plaintiff’s testimony over
defendant’s testimony. But “the credibility of witnesses and the weight to be given their
testimony are proper matters for determination by the trier of facts.” In re Oversmith’s Estate,
340 Mich 104, 106; 64 NW2d 678 (1954). Further, the trial court did not expressly rely on
plaintiff’s testimony as support for its decision. The court did rely on the testimony of the
parties’ brother, who, as noted, testified that when he asked defendant why she did not share the
money with plaintiff, she replied that she had spent the money on her divorce and medical bills
and made no mention of the money being a gift.

        In sum, the trial court did not clearly err in finding that the $84,000 was not an inter vivos
gift but instead became a part of the estate. Defendant repeatedly represented that the $84,000
came to her through inheritance. Defendant did not refer to that money as a gift until the present
action was brought. Further, defendant’s own testimony established that Shirley continued to
exert control over the money in the safe deposit box. And because we affirm the trial court’s
decision after the bench trial, we need not address defendant’s argument that the trial court erred
in granting plaintiff partial summary disposition. See B P 7 v Bureau of State Lottery, 231 Mich
App 356, 359; 586 NW2d 117 (1998) (“As a general rule, an appellate court will not decide
moot issues.”).




                                                 -4-
       Next, defendant raises a claim of judicial bias and partiality based on the following
conclusion in the trial court’s opinion:

       Ms. Deforge was appointed DPOA for her mother after she obtained the money
       that was not placed in the safety deposit box in June of 2012 and therefore did not
       have a fiduciary duty regarding that money to her mother pursuant to MCL
       700.1308 as she was not named her mother’s attorney-in-fact until July 24, 2012.
       [Emphasis added.]

Defendant argues that the court’s statement that defendant “obtained the money” is inconsistent
with the court’s finding that the money was not a gift. We fail to see how this statement is
evidence of judicial basis given that it was made in a ruling favorable to defendant. Further, the
trial court was referring to money “not placed” in the safe deposit box, i.e., not the $84,000. In
any event, if the judge’s statement was error, a single mistake does not overcome the
presumption that the trial judge was impartial. See Mitchell v Mitchell, 296 Mich App 513, 532;
823 NW2d 153 (2012) (“A trial judge is presumed unbiased, and the party asserting otherwise
has the heavy burden of overcoming the presumption.”); In re Contempt of Henry, 282 Mich
App 656, 680; 765 NW2d 44 (2009) (The mere fact that a judge ruled against a litigant, even if
the rulings are later determined to be erroneous, is not sufficient to require disqualification or
reassignment.”).

        Finally, defendant argues that the trial court abused its discretion by denying her motion
for reconsideration.4 MCR 2.119(F)(3), which governs motions for reconsideration, states:

                Generally, and without restricting the discretion of the court, a motion for
       rehearing or reconsideration which merely presents the same issues ruled on by
       the court, either expressly or by reasonable implication, will not be granted. The
       moving party must demonstrate a palpable error by which the court and the
       parties have been misled and show that a different disposition of the motion must
       result from correction of the error. [Emphasis added.]

In defendant’s motion for reconsideration, she asserted the same arguments and positions
presented at trial and in her opposition to plaintiff’s motion for summary disposition. Rather
than demonstrate palpable error that misled the trial court, defendant merely attempted to




4
  We review a trial court’s decision on a motion for reconsideration for an abuse of discretion.
Bill & Dena Brown Trust v Garcia, 312 Mich App 684, 695; 880 NW2d 269 (2015). An abuse
of discretion “occurs when the court’s decision falls outside the range of principled outcomes.”
Id.



                                                -5-
relitigate the issues that the trial court already decided. Because defendant failed to advance any
new position, the trial court did not abuse its discretion in denying defendant’s motion for
reconsideration.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Stephen L. Borrello
                                                            /s/ Douglas B. Shapiro




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