                              STATE OF MICHIGAN

                              COURT OF APPEALS



In re ESTATE OF MARTHA NATSIS.


CHRIST G. NATSIS, Personal Representative of                         UNPUBLISHED
the ESTATE OF MARTHA NATSIS,                                         September 18, 2018

                 Appellant,

v                                                                    No. 338442
                                                                     Wayne Probate Court
BESSIE NATSIS DAVENPORT,                                             LC No. 1976-677148-DA

                 Appellee.


Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ.

PER CURIAM.

        Petitioner-appellant Christ G. Natsis, the personal representative of the Estate of Martha
Natsis, appeals by right the probate court’s opinion and order denying petitioner’s motion for
summary disposition pursuant to MCR 2.116(C)(7) and (10), and instead granting summary
disposition in favor of respondent-appellee Bessie Natsis Davenport pursuant to MCR
2.116(I)(2). The parties are two of Martha’s three children. We affirm.

                                  I. FACTUAL BACKGROUND

        At issue in this appeal is the estate’s interest in an apartment building located in Ann
Arbor, Michigan (the “Ann Arbor property”1). Petitioner’s family’s interest in this property
dates back to 1956 when Robert and Anna Netzel, by warranty deed, first conveyed the property
to several members of the Natsis family. On April 11, 1960, the Ann Arbor property was
conveyed by quitclaim deed to petitioner and his wife, to petitioner’s now-deceased brother John
and his wife, and to petitioner’s parents, George and Martha Natsis. Each couple had a resulting
1/3 undivided interest in the property. The deed was recorded with the Washtenaw County
register of deeds in April of 1962. George died in 1972, and Martha died testate in 1976.
Martha’s will provided that her sons, petitioner and John, would each receive $5,000 from the


1
    The probate court also referred to this property as “the Washtenaw property.”


                                                 -1-
estate, with the residue of the estate passing equally to her three children: petitioner, John, and
Bessie. Martha’s will did not make any specific provisions for the Ann Arbor property.

        After Martha’s death in 1976, petitioner was appointed personal representative of her
estate. Martha’s interest in the Ann Arbor property was not listed as an estate asset in the estate
inventory, nor was it identified in the account of fiduciary. The probate court administratively
closed the estate in 2002. Petitioner allegedly did not believe that the estate continued to have an
interest in the Ann Arbor property.

       Petitioner asserts that after Martha died, the three siblings engaged in protracted
negotiations to settle Martha’s estate and the parties’ interests in the Ann Arbor property.
Sometime in 1983, after rejecting several proposed iterations, the siblings finally entered into a
written agreement to resolve the dispute. The “1983 Agreement” included the following
provisions:

               1. That JOHN G. NATSIS AND CHRIST G. NATSIS agree to give to
       BESSIE NATSIS DAVENPORT the total sum of SIXTY-FIVE THOUSAND
       DOLLARS ($65,000.00) to settle the estate of MARTHA NATSIS and resolve
       any and all differences regarding the real estate commonly known as 905 Church
       Street, Ann Arbor, Washtenaw County, Michigan, and more fully described as:

               S 10 ft. of Lot 3 and N 46 ft. of Lot 4, Hills Addition to City of
               Ann Arbor, Washtenaw County, Michigan, according to the Plat
               thereof as recorded in Liber 60 of Deeds, Page 136, Washtenaw
               County Records.

                2. For the above consideration BESSIE NATSIS DAVENPORT agrees to
       settle the above mentioned estate, agrees to the first and final account, agrees to
       sign a waiver and consent, and upon payment of the above consideration agrees to
       sign a receipt for residue. Further, BESSIE NATSIS DAVENPORT further
       agrees to waive any and all claims that she may have had regarding the real estate
       as above mentioned.

              3. BESSIE NATSIS DAVENPORT hereby tenders to JOHN G. NATSIS
       and CHRIST G. NATSIS a quit claim deed which was found in her papers
       wherein the real estate was conveyed to JOHN G. NATSIS and CHRIST G.
       NATSIS.

               4. JOHN G. NATSIS AND CHRIST G. NATSIS agree to pay BESSIE
       NATSIS DAVENPORT the above mentioned consideration in full and complete
       settlement of said estate, and any claim that she may have had regarding the real
       estate as mentioned above.

              5. The parties hereto acknowledge that upon fulfillment of this agreement,
       each party releases the other party from any and all liabilities which they may
       have had against each other regarding the estate and the real estate above
       mentioned.


                                                -2-
Petitioner contends that Paragraph 3 refers to a quitclaim deed that Martha allegedly executed
before her death, in which she purportedly conveyed her 1/3 interest in the Ann Arbor property
to petitioner and John. Petitioner contends that this deed somehow was in Bessie’s possession.
Because this alleged deed has never been produced, petitioner refers to it as “the missing deed.”
Bessie denies that any such deed ever existed.

       It is undisputed that petitioner and John paid Bessie $40,000 in October 1983. Petitioner
provided the probate court with a copy of a cashier’s check, dated October 7, 1983, and made
payable to petitioner in the amount of $40,000. Petitioner endorsed the check over to Bessie
with the following notation included with his signature:

              Pay only to the order of Bessie Davenport -- per amended agreement --
       Balance Due is $25,000.00 payable in 60 Days.

The parties disagree whether the remaining $25,000 was ever tendered to Bessie. In her verified
answer to the petition, Bessie, now 87 years old, denied that she was ever paid the balance of the
amount owed pursuant to the 1983 Agreement. Petitioner has no specific recollection of paying
Bessie the $25,000, and simply contends: “Based upon information and belief, Petitioner’s
brother, John Natsis, tendered the remaining balance due of $25,000 to Bess [sic] in 1983.”

        On July 25, 2008, after the death of his wife, John conveyed, by warranty deed, his and
his wife’s entire interest in the Ann Arbor property to the John G. Natsis Living Trust. Similarly,
on December 18, 2009, petitioner and his wife conveyed their combined interest in the Ann
Arbor property to the Christ G. Natsis and Mary M. Natsis Revocable Trust.

         In the years after Martha’s death, petitioner and John maintained, improved, and operated
the Ann Arbor property as an apartment complex. Petitioner contends that they operated under
the belief that, either pursuant to the 1983 Agreement or the missing deed, the two brothers or
their trusts each owned a 1/2 interest in the property. Then, after John’s death in 2011, petitioner
decided to sell the property. In March 2016, petitioner, as trustee of the Christ G. Natsis and
Mary M. Natsis Revocable Trust, and the trustees of the John G. Natsis Living Trust each
contracted to sell their respective interests in the Ann Arbor property to Washington Street
Apartments, LLC. During the title search, petitioner learned that Martha’s estate still possessed
a 1/3 interest in the Ann Arbor property. Nonetheless, on May 31, 2016, the Ann Arbor property
was conveyed by warranty deed to Washington Street Apartments for the sum of $1,050,000.00.
Currently, $200,000.00 has been placed in escrow until the cloud on the title is cleared.

                              II. PROCEDURAL BACKGROUND

        Petitioner thereafter filed a petition to reopen Martha’s Estate. Petitioner requested that
the court (1) reopen the estate, (2) appoint him personal representative, (3) hold the 1983
Agreement valid, and (4) enforce the agreement by finding that Bessie did not have any interest
in the Ann Arbor property. In response to the petition, Bessie asserted that the 1983 Agreement
was unenforceable, that Martha’s estate possessed a 1/3 interest in the proceeds of the sale of the
Ann Arbor property, and, as a result, Bessie was entitled to her 1/3 share of the estate’s 1/3
interest in the sale proceeds.



                                                -3-
        The probate court granted the petition to reopen Martha’s estate, appointed petitioner
personal representative, and directed petitioner to file a dispositive motion on the issues raised in
the petition. Petitioner subsequently filed a petition requesting summary disposition pursuant to
MCR 2.116(C)(7) and (10). Petitioner argued that because Bessie, pursuant to the 1983
Agreement, agreed to receive $65,000 in exchange for a release of her interest in the estate and
the Ann Arbor property, petitioner was entitled to an order of the court directing the estate’s 1/3
interest in the proceeds of the sale of the Ann Arbor property be divided equally between the
John G. Natsis Living Trust and the Christ G. Natsis and Mary M. Natsis Revocable Trust.
Petitioner further asserted, among other things, that the statute of limitations and the doctrine of
laches precluded Bessie from arguing that the 1983 Agreement was unenforceable.

        In her response to the petition for summary disposition, Bessie noted that there had never
been any payment of the outstanding $25,000 and no signed receipt that she ever received the
entire $65,000. Thus, she never received her full consideration for the 1983 Agreement.
Additionally, she argued that there was no evidence of any “phantom” quitclaim deed.
Consequently, she continued to possess “a 1/3 residuary interest in Martha’s Estate, including the
1/3 [sic2] sale value and proceeds from the 2016 closing of the [Ann Arbor] Property.” Bessie
also argued that petitioner was barred by the statute of frauds, the statute of limitations, and
laches, from attempting to enforce the 1983 Agreement.

        After a hearing on the petition for summary disposition, the probate court issued an
opinion and order denying petitioner’s petition for summary disposition and granting summary
disposition in Bessie’s favor pursuant to MCR 2.116(I)(2). The court recognized that the critical
issue was the enforceability of the 1983 Agreement. It first determined that the 1983 Agreement
satisfied the statute of frauds. The court also found that all of the essential elements of a contract
were present despite the absence of a specific date, other than “1983,” on the agreement. The
court then found that performance was not completed as agreed upon by the parties. No deed
was recorded conveying the decedent’s interest in the property to John and petitioner, and there
was no evidence presented to show that the remaining $25,000 was paid to Bessie.

        Finding that the 1983 Agreement had been breached, the court then considered whether
the ability to enforce the agreement was barred by the six-year limitations period that governs
actions for breach of contract. MCL 600.5807(8). The probate court held:

                  Because petitioner is the one who seeks to enforce the terms of the
          contract, he must comply with the requirements of the statute of limitations. In
          the supplement to the petition to reopen, the motion for summary disposition, and
          in the reply, petitioner specifically requests that the court declare the agreement to
          be valid and enforceable and find that it releases respondent’s interest in the estate
          and the Washtenaw property. Ultimately, petitioner seeks to enforce the terms of
          the agreement by way of specific performance. The respondent simply raised
          nonpayment or breach as a defense. She did not initiate the proceeding. The
          petitioner did not seek to enforce the agreement through his petition to reopen


2
    See footnote 3, infra.


                                                   -4-
          until 2016, well beyond when the statute of limitations had run. Thus, the
          petitioner’s claim to enforce the agreement as alleged in the petition to reopen is
          barred by the statute of limitations and summary disposition is appropriate.

The court then considered the implications of the unenforceability of the 1983 Agreement:

                  In the exercise of the court’s authority, it finds that the estate owns a 1/3
          interest in the Washtenaw property. In her will, the decedent devised the residue
          and remainder of her estate equally to the petitioner, the respondent, and John,
          giving them each a 1/9 interest[3] in the property. The parties entered into an
          agreement whereby the respondent would convey her 1/9 interest in the residue of
          the estate and in the property to the petitioner and respondent [sic4]. However, the
          parties did not fully perform in accordance with the agreement. As a result,
          respondent retained her interest in the decedent’s estate and in the real property.
          Because the parties agree as to the sale, the petitioner, as personal representative
          of the estate, is hereby authorized to convey the estate’s 1/3 share in the property
          to the purchaser. The proceeds of the sale shall be held in a restricted estate
          account and not be distributed without a prior order from the court. Counsel for
          the Personal Representative needs to insure funds are placed in a restricted
          account and submit verification to the Court.

                  Thereafter, the parties may proceed as to the issue of settlement of the
          estate and distribution of the proceeds. Respondent’s share will be reduced by the
          $40,000 she has received for the property. Briefs of ten pages or less may be
          submitted within 30 days from the date of this opinion and attached order on the
          issue of how the residue of the estate should be distributed and how much each
          party is to receive, including any possible setoffs. A hearing will be scheduled on
          the issue, at which time the parties will have the opportunity to submit proofs. In
          the alternative, the parties upon agreement may contact the court to schedule a
          status conference to see if the matter can be resolved without further litigation and
          costs. If no briefs or responses are received, the respondent’s share will be
          reduced by $40,000.00 and $20,000.00 will be added to each of the other heir’s
          shares.

Petitioner now appeals the probate court’s order denying his petition for summary disposition
and granting summary disposition in Bessie’s favor.


3
  This 1/9 interest in the Ann Arbor property comes from dividing up only Martha’s estate’s
interest. Petitioner and John, through their trusts, each already owned 1/3 of the Ann Arbor
property by conveyance, and Martha owned the remaining 1/3. Pursuant to Martha’s will,
Martha’s interest in the Ann Arbor property was divided equally between the three children.
Consequently, Bessie was entitled to 1/3 of Martha’s 1/3 of the Ann Arbor property, which
equals 1/9 of the property as a whole.
4
    The trial court clearly intended to refer to petitioner and John.


                                                    -5-
                                III. STANDARD OF REVIEW

        This Court reviews de novo a probate court’s decision on a motion for summary
disposition. In re Estate of Attia, 317 Mich App 705, 709; 895 NW2d 564 (2016). Petitioner
moved for summary disposition pursuant to MCR 2.116(C)(7) and (10). A defendant is entitled
to summary disposition “under MCR 2.116(C)(7) when a statute of limitations bars a claim.” In
re Gerald L Pollack Trust, 309 Mich App 125, 134; 867 NW2d 884 (2015). “A motion under
MCR 2.116(C)(10) tests the factual sufficiency of a claim and must be supported by affidavits,
depositions, admissions, or other documentary evidence, the substance or content of which
would be admissible at trial.” In re Lett Estate, 314 Mich App 587, 595; 887 NW2d 807 (2016).
“The court must view the proffered evidence in the light most favorable to the party opposing the
motion” and “should grant the motion when the submitted evidence fails to establish any genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. “A
genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” Id.
(quotation omitted). “Where undisputed evidence shows one party is entitled to judgment as a
matter of law, the court may enter judgment for that party.” Id. (citation omitted).

            IV. PETITIONER’S RIGHT TO ENFORCE THE 1983 AGREEMENT

        Because Martha’s will made no specific provisions for the Ann Arbor property, it became
part of the estate residue that was to pass equally to Martha’s three children. Under the terms of
the 1983 Agreement, petitioner and John were obligated to pay Bessie the sum of $65,000 in
exchange for her release of any interest she may have had in Martha’s estate, including the Ann
Arbor property. While there is evidence that $40,000 was paid to Bessie, there was no
competent evidence that petitioner or John paid the remaining $25,000. In her verified answer to
the petition, Bessie denied that she ever received the remaining balance. In response, petitioner
provided no evidence, by way of documentation, affidavit, or otherwise, that the remaining
amount was paid. Indeed, petitioner orally represented to the court that he simply assumed that
John had paid the outstanding balance to Bessie. Furthermore, the 1983 Agreement specifically
required that Bessie, upon payment of the consideration, would “sign a receipt for residue.” No
such receipt has been produced. The probate court did not err when it concluded that there
existed no question of fact whether petitioner and John had paid to Bessie the total amount due
under the agreement.

        Petitioner and John’s failure to pay the amount due pursuant to the agreement constituted
a substantial breach going to the essence of the contract, which thereby relieved Bessie of any
further obligation under the contract. See, e.g., Blazer Foods, Inc v Restaurant Props, Inc, 259
Mich App 241, 251 n 7; 673NW2d 805 (2003). Our Supreme Court has recognized that there
exists “a failure of consideration when one party has committed a first, substantial breach of a
contract and sought to maintain an action against the other party for a subsequent failure to
perform.” Innovation Ventures v Liquid Mfg, 499 Mich 491, 509; 885 NW2d 861 (2016).
“‘[W]hen there is a failure to perform a substantial part of the contract or one of its essential
items,’ the courts have permitted the parties to rescind the contract.” Id. at 510 (citation and
quotation omitted.) It is axiomatic that “one who first breaches a contract cannot maintain an
action against the other contracting party for his subsequent breach or failure to perform.” Alpha


                                               -6-
Capital Mgt, Inc v Rentenbach, 287 Mich App 589, 613, 792 NW2d 344 (2010) (quotation
omitted).

        Consequently, the probate court did not err when it found that the 1983 Agreement was
unenforceable. In the absence of this agreement, the court did not err when it further held that
the provisions of Martha’s will must prevail. In other words, that the estate possessed a 1/3
interest in the Ann Arbor property and that this interest would pass equally to Martha’s three
children.5

          V. RESPONDENT’S RIGHT TO CHALLENGE THE 1983 AGREEMENT

         Petitioner nevertheless argues that Bessie is barred by the statute of limitations and the
doctrine of laches from asserting “a claim” that the agreement was unenforceable. Petitioner
reasons that when the $25,000 balance was not timely paid, Bessie had six years to bring a claim
for breach of contract. He then reasons that because Bessie did not timely pursue this course, she
is now precluded from challenging the enforceability of the 1983 Agreement. Essentially,
petitioner argues that the statute of limitations should operate to bar Bessie from asserting any
affirmative defense she may have regarding the enforceability of the 1983 Agreement. Petitioner
cites to no legal authority to support the proposition that affirmative defenses are subject to
statutes of limitations. Furthermore, it is plainly apparent that statutes of limitations apply to
legal actions, not affirmative defenses. At the time the petition was filed, MCL 600.5807
provided that “[n]o person may bring or maintain any action to recover damages or sums due for
breach of contract, or to enforce the specific performance of any contract unless, after the claim
first accrued to himself or to someone through whom he claims, he commences the action within
the periods of time prescribed by this section.”6 (Emphasis added.) Clearly, statutes of
limitations apply to time-bar claims, not defenses to claims.

       We reach a similar conclusion when considering application of the doctrine of laches. In
Knight v Northpointe Bank, 300 Mich App 109, 114-115; 832 NW2d 439, 442-443 (2013), this
Court explained the underpinnings of the doctrine:

               If a plaintiff has not exercised reasonable diligence in vindicating his or
       her rights, a court sitting in equity may withhold relief on the ground that the
       plaintiff is chargeable with laches. When laches appears, the court merely leaves


5
  The probate court did recognize that Bessie’s share would be reduced by the $40,000 she
previously received.
6
  MCL 600.5807 was amended by 2018 PA 15, effective May 7, 2018. The current version of
the statute is substantially similar to the prior version and states, in pertinent part:
              A person may not bring or maintain an action to recover damages or
       money due for breach of contract or to enforce the specific performance of a
       contract unless, after the claim first accrued to the person or to someone through
       whom the person claims, the person commences the action within the applicable
       period prescribed by this section.


                                               -7-
       the parties where it finds them. This is so because equity will not lend aid to
       those who are not diligent in protecting their own rights. The rule that equity aids
       the vigilant is designed to discourage laches by making it a bar to relief and to
       prevent the enforcement of stale demands.

               Although considerations of timing are important when determining
       whether laches applies to the facts, laches is not triggered by the passage of time
       alone. Laches is an equitable tool used to provide a remedy for the inconvenience
       resulting from the plaintiff's delay in asserting a legal right that was practicable to
       assert. As such, when considering whether a plaintiff is chargeable with laches,
       we must afford attention to prejudice occasioned by the delay. It is the prejudice
       occasioned by the delay that justifies the application of laches. This Court has
       repeatedly held that mere delay in attempting to enforce a right does not constitute
       laches, but that it must further appear that the delay resulted in prejudice to the
       party claiming laches of such character as to render it inequitable to enforce the
       right. [Knight, 300 Mich App at 114-115 (quotations, quotation marks, brackets,
       and citations omitted).]

Clearly, as the probate court correctly found, the laches doctrine applies to the entity asserting a
legal claim, not a defense to a claim.

        In this case, it is petitioner, not Bessie, who seeks to enforce the terms of the 1983
Agreement. Petitioner specifically requested that the court declare the agreement valid and
enforceable, and thereafter find, pursuant to that agreement, that Bessie has waived any interest
in the estate and, more specifically, the Ann Arbor property. In other words, as the probate court
found, petitioner filed a claim for specific performance. In contrast, Bessie has not initiated any
proceeding to enforce the agreement. She simply raised nonpayment as a defense. More
significantly, petitioner did not initiate any action to enforce the agreement until more than 30
years after Bessie allegedly failed to perform several of her obligations under the contract.
Accordingly, it is petitioner’s claim for enforcement of the 1983 Agreement that is barred by the
statute of limitations and doctrine of laches.

      VI. THE ESTATE’S RESIDUAL INTEREST IN THE ANN ARBOR PROPERTY

       Petitioner alternatively argues that, irrespective of the enforceability of the 1983
Agreement, the probate court erred when it found that Martha’s estate had any present interest in
the Ann Arbor property. We disagree.

        In support of this alternative position, petitioner asserts that Martha executed a quitclaim
deed before her death conveying the property to John and petitioner. However, such a deed has
never been produced and petitioner has provided no persuasive or credible evidence that such a
deed was ever executed or existed. Petitioner relies on Paragraph 3 of the 1983 Agreement that
references a “quit claim deed which was found in [Bessie’s] papers wherein the real estate was
conveyed to JOHN G. NATSIS and CHRIST G. NATSIS.” This paragraph fails to identify any
particular deed with certainty, especially in light of known deeds executed in 1956 and 1960 that
also that also conveyed an interest in the property to John and petitioner. Moreover, in her
verified response to the petition, Bessie alleged that the only deed she found after Martha’s death

                                                -8-
in 1976 was the deed transferring title of the property to Martha and her husband George. Bessie
denied finding a quitclaim deed conveying Martha’s interest in the property to petitioner and
John. Petitioner has failed to establish the factual predicate for this alternative argument.

        In any event, petitioner abandoned this position when his attorney conceded at a hearing
below that he “was not asking the Court to approve any missing deed here” and the missing deed
was only referenced to explain why the brothers thought that after Martha’s death they each had
a 1/2 interest in the property. Petitioner has not presented any evidence that Martha conveyed
the property to John and petitioner before her death. Consequently, the probate court did not err
when it found that the estate continued to possess a 1/3 interest in the Ann Arbor property.

                                      VII. CONCLUSION

       The probate court properly found that the 1983 Agreement was unenforceable and that
Bessie was permitted to assert defenses to the agreement. The probate court also properly found
that Martha’s estate retained a 1/3 interest in the Ann Arbor property, and Bessie was entitled to
her share of that interest. Therefore, the probate court is affirmed. Appellee, Bessie Natsis
Davenport, being the prevailing party, may tax costs. MCR 7.219(A).

                                                            /s/ Thomas C. Cameron
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Jonathan Tukel




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