                           STATE OF MICHIGAN

                            COURT OF APPEALS



FRANK S. SZYMANSKI, P.C.,                                            UNPUBLISHED
                                                                     March 23, 2017
               Plaintiff-Appellee,

v                                                                    No. 328349
                                                                     Wayne Circuit Court
ELIZABETH ELDRIDGE,                                                  LC No. 12-016174-CK

               Defendant-Appellee.


Before: STEPHENS, P.J., and SAAD and METER, JJ.

PER CURIAM.

        In this dispute over attorney fees that plaintiff claims are allegedly owed to him1 by
defendant, the trial court, after a bench trial, found that plaintiff was entitled to an award of
$27,171.44 on an account-stated claim. The final order stated that plaintiff was only allowed to
collect on the amount if defendant realized a recovery in that amount from her ex-husband.
Defendant appeals as of right, and we affirm.

        Defendant contends that the trial court erred in finding for plaintiff because a valid claim
for an account stated depends on an agreement about a debt, and no such agreement existed here.

        This Court reviews “a trial court’s findings of fact in a bench trial for clear error and its
conclusions of law de novo.” Chelsea Investment Group, LLC v City of Chelsea, 288 Mich App
239, 250; 792 NW2d 781 (2010). “A finding is clearly erroneous if the reviewing court, on all
the evidence, is left with a definite and firm conviction that a mistake has been committed.”
Thames v Thames, 191 Mich App 299, 301-302; 477 NW2d 496 (1991). “Under this standard,
the reviewing court cannot reverse if the trial court’s view of the evidence is plausible.” Id. at
302.




1
  While plaintiff is in fact a legal entity, Frank S. Szymanski, P.C., because various facts in this
case are from the testimony of plaintiff’s principal owner, Frank S. Szymanski, in this opinion
we will refer to Szymanski himself as plaintiff and use the pronoun “he” when referring to
plaintiff.


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       The trial court did not clearly err in entering judgment for plaintiff in the amount of
$27,171.44.

               The conversion of an open account into an account stated, is an operation
       by which the parties assent to a sum as the correct balance due from one to the
       other; and whether this operation has been performed or not, in any instance, must
       depend upon the facts. That it has taken place, may appear by evidence of an
       express understanding, or of words and acts, and the necessary and proper
       inferences from them. When accomplished, it does not necessarily exclude all
       inquiry into the rectitude of the account. The parties may still impeach it for fraud
       or mistake. But so long as it is not impeached, the agreed statement serves in
       place of the original account, as the foundation of an action. It becomes an
       original demand, and amounts to an express promise to pay the actual sum stated.
       [White v Campbell, 25 Mich 462, 467-468 (1872) (emphasis in original).]

         A “mutual understanding by the parties of the truth of the account, or the agreement upon
a sum to stand on the balance,” is a necessary element and a “mere rendering of an account . . .
will not make the account a stated one . . . .” Id. at 468. The Supreme Court in White stated that,
“as against a party receiving an account, and not objecting to it within a reasonable time, its
correctness may be considered as admitted by him, and the balance as the debt; or, in other
words, that the party rendering the account may, under such circumstances, treat it as an account
stated . . . .” Id. However, the White Court went on to hold that if there was any objection to the
amount “within a reasonable time,” that would defeat the claim. Id. at 469.

        The Supreme Court followed the White holding in its decision in Fisher Sand & Gravel
Co v Neal A Sweebe, Inc, 494 Mich 543, 558; 837 NW2d 244 (2013), where it held that an
account-stated claim requires mutual asset but that “there are instances when assent may be
inferred from a party’s inaction . . .” (emphasis in original). The Fisher Court held that when a
party’s assent to a balance is inferred from inaction, “the stated account operates to form an
implied contract.” Id. at 558-559. Because the Fisher Court found that the trial court had not
considered whether the defendant objected to the plaintiff’s statement of the account at issue, it
remanded the case to the trial court for it to determine whether there was sufficient evidence that
the defendant agreed to the amount stated, “either expressly or by implication.” Id. at 562. This
Court similarly held in Keywell & Rosenfeld v Bithell, 254 Mich App 300, 330-333; 657 NW2d
759 (2002), that where the record suggested that the defendant failed to object to a law firm’s
bills and explicitly conceded some of them, the trial court erred in dismissing the plaintiff’s
account-stated claim.

         In the present case, the dispute at issue can appropriately be divided into two sub-issues.
First, the parties dispute whether there was sufficient evidence of an account being submitted by
plaintiff to defendant. Plaintiff argues that his testimony that he directed that the bills, as well as
two demand letters, be sent to defendant was sufficient to show that an account was stated to
defendant. Defendant argues that this evidence was insufficient, given plaintiff’s inability to
provide any further details or testimony, based on his personal knowledge, that he knew the bills
and letters were in fact sent. Second, assuming that plaintiff prevails on the first dispute, the
parties dispute whether plaintiff can recover on an account-stated claim where he expressly


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testified that defendant never agreed with him on either the amount alleged in the complaint or
the amount he requested at trial.

         The first dispute is really a dispute about whether the trial court’s factual finding that
plaintiff presented an account to defendant through the mailing of bills and letters was clearly
erroneous. For this Court to conclude that the trial court clearly erred in finding that an account
had been stated to defendant through the mailing of bills and letters, it would have to be “left
with a definite and firm conviction that a mistake has been committed.” Thames, 191 Mich App
at 301-302. Because plaintiff testified that he instructed or directed that the bills and letters be
sent, and there was no testimony by defendant denying that she received them, the trial court did
not commit clear error in finding that such bills and letters had been sent. Additionally, plaintiff
testified regarding a telephone call with defendant in the summer of 2012 during which she
appeared to acknowledge that she was aware of the bills. Defendant argues that plaintiff’s
testimony regarding this call shows her objection to the account. However, plaintiff did not
testify that defendant objected to the account; his testimony was that defendant wanted to talk
about the bills. Because there could be any number of reasons why plaintiff would want to talk
about the bills aside from an objection to the amount (such as discussing a payment plan or
discussing whether collection could wait), this testimony does not show that defendant objected
to the account that was stated to her.

        Because the trial court did not clearly err in making its factual finding that defendant was
presented with an account, the next issue to be determined is whether plaintiff could recover on
an account-stated claim when he testified that there was never an explicit agreement regarding
the exact amount owed by defendant to him. Plaintiff argues that it is immaterial that there was
never an agreement, either express or implied, regarding a specific amount because the presence
of an account stated does not exclude inquiry into the rectitude of the account. The Supreme
Court in White, 25 Mich at 467-468, did hold that the conversion of an open account to an
account stated “does not necessarily exclude all inquiry into the rectitude of the account” and
that the parties could still impeach the account “for fraud or mistake.” This Court similarly
stated in Keywell & Rosenfeld, 254 Mich App at 332, that on remand for a trial on the plaintiff’s
account-stated claim, the defendant was entitled to challenge certain items listed on the bills.

        Plaintiff argues that the account stated in bills and demand letters mistakenly included
interest and a double-billing2 but that these mistakes should not operate to defeat his account-
stated claim because, by not objecting to the bills within a reasonable time, defendant impliedly
agreed to pay the balance minus the parts of the bills that plaintiff admits were mistaken.
Because the Supreme Court has held that during the resolution of an account-stated claim,
inquiry can be made for bills listed because of fraud or mistake, plaintiff is correct—provided he
could show at least an implied agreement by defendant that he could recover the agreed-to
amount of the account, minus the amounts that were mistakenly included. There was indeed
evidence that defendant impliedly assented to a sum by her failure to object to the amount of the


2
 Plaintiff testified that the amount of $58.50 was listed twice and that he deleted one of these
amounts because he was concerned that it could have been a double-billing.


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account within a reasonable time when presented to her by bills and demand letters from plaintiff
such that the trial court correctly held that there was an account stated.

        Plaintiff testified on direct examination that on February 7, 2012, a bill was sent to
defendant that included the previous balances from the December 8, 2006, bills as well as
interest. Plaintiff also testified about demand letters being sent in February and May of 2012.
Defendant never denied getting these letters or bills. Defendant’s failure to object to these letters
or bills sent in 2012 within a reasonable time constituted her implied admission regarding their
correctness. The fact that plaintiff acknowledged during litigation that there were certain
mistakes in the 2012 bill and letters is simply part of an allowable inquiry into the rectitude of
the account and does not defeat plaintiff’s claim. See id. at 332 n 23. Plaintiff acknowledged
that there was not a point in time where defendant indicated that she agreed to pay $56,603.09
(the total amount on the original 2012 bill). However, it is not required that plaintiff present
specific evidence of defendant’s explicit agreement because the Supreme Court in Fisher, 494
Mich at 558-559, stated that a party’s assent can be inferred from inaction so as to form an
implied contract. The trial court did not err in finding that plaintiff was “entitled to an award on
his claim for an account stated in the amount of $27,171.44.”

          Given our resolution of this issue, we need not address the additional issues raised on
appeal.

          Affirmed.



                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Henry William Saad
                                                              /s/ Patrick M. Meter




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