                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re the WANDA G. VAN ALSTINE
REVOCABLE TRUST.


REX VAN ALSTINE,                                                   UNPUBLISHED
                                                                   February 2, 2016
               Petitioner-Appellant,

v                                                                  No. 323549
                                                                   Mecosta Probate Court
PETER A. JORDAN, Trustee of the WANDA G.                           LC No. 13-000423-TV
VAN ALSTINE REVOCABLE TRUST,

               Respondent-Appellee.


Before: BECKERING, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

        Petitioner, Rex Van Alstine, appeals as of right from an order of the probate court
granting summary disposition pursuant to MCR 2.116(C)(10) (no question of material fact) in
favor of respondent, Peter A. Jordan, trustee of the Wanda G. Van Alstine Revocable Trust. We
affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This appeal involves petitioner’s action to invalidate an amendment to a trust established
by his mother, Wanda Van Alstine, after she amended the trust to expressly disinherit petitioner.
In 2006, Wanda established the Wanda G. Van Alstine Revocable Trust and named all six of her
children, including petitioner, as beneficiaries. In November 2010, petitioner was convicted of
three felonies, one of which involved a charge of identity theft for stealing Wanda’s identity. He
was sentenced for these offenses in 2011. In March 2011, Wanda amended the trust and
expressly removed petitioner as a beneficiary. Wanda died on or about June 28, 2013.




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       On February 5, 2014, petitioner filed a petition to set aside the amended trust, alleging
that Wanda lacked testamentary capacity to sign the 2011 amendment.1 He also alleged that the
2011 amendment was the product of undue influence exerted by his sisters, Donna Highway and
Wilma Kutchinski, and/or other unidentified persons.” At the time of the amendment,
Kutchinski and Highway, along with their sister—and Wanda’s other daughter—Tammy Renne,
were serving as Wanda’s co-guardians and were serving as co-conservators of her estate.

        During discovery, respondent served petitioner with interrogatories, requests for
admissions, and a request for the production of documents. Petitioner never answered the
requests, despite being granted an extension.2 Among the requests to admit were admissions by
petitioner that he had no evidence that Kutchinski and Highway—the two sisters named in the
petition as those who exerted undue influence over Wanda—exerted undue influence over
Wanda:

       27. Admit that you have no evidence that Wilma Kutchinski exerted undue
       influence over Wanda Van Alstine.

                                              ***

       28. Admit that you have no evidence that Donna Highway exerted undue
       influence over Wanda Van Alstine.

                                              ***

       29. Admit that you were convicted of identity theft involving the identity of
       Wanda Van Alstine.

        Respondent moved for summary disposition and attached affidavits from Kutchinski and
Highway stating that it was Wanda’s decision—and Wanda’s decision alone—to disinherit
petitioner because of instances when he stole from Wanda. Respondent also attached to the
motion affidavits from individuals who were present at the execution of the amended trust; the
affidavits echoed the notion that the amendment was the product of Wanda’s desires.
Respondent argued that these affidavits demonstrated that no undue influence occurred. In
addition, respondent moved the trial court to have the requests for admissions deemed admitted
based on petitioner’s failure to respond.




1
  Petitioner later expressly admitted he had no evidence in support of this claim and, as a result,
the trial court dismissed any claim based on lack of testamentary capacity. Petitioner does not
raise any issues on appeal about this claim.
2
 According to respondent counsel’s representations at an August 19, 2014 summary disposition
hearing, the extension was a three-week extension. Petitioner’s counsel stated he believed the
extension was “open-ended.” Regardless of the length of the extension, it is undisputed that
petitioner never responded to the discovery request.


                                                -2-
       Petitioner opposed the motion for summary disposition, but did not present any
documentary evidence. Instead, petitioner simply asserted that a presumption of undue
influence3 arose in this case, given: (1) the fiduciary relationship between the three sisters—
Kutchinski, Highway, and Renne—and Wanda; (2) the benefit the sisters received by
disinheriting petitioner; and (3) the sisters’ alleged opportunity to influence Wanda. On August
19, 2014, the day of the hearing on respondent’s motion for summary disposition, petitioner filed
another response brief. The response brief purported to quote passages of what petitioner alleged
was deposition testimony from Kutchinski, Highway, and Renne, but petitioner did not attach
copies of the deposition transcripts to his brief.4

       At the August 19, 2014 summary disposition hearing, the trial court ruled that
respondent’s requests for admissions, to which petitioner never replied, were deemed admitted.
Noting in part that petitioner’s only documentary evidence in opposition to respondent’s motion
for summary disposition was untimely filed, the trial court also granted respondent’s motion for
summary disposition and dismissed petitioner’s challenge to the trust. This appeal followed.

                                          II. ANALYSIS

       We review de novo a trial court’s grant of summary disposition under MCR
2.116(C)(10). Dillard v Schlussel, 308 Mich App 429, 444; 865 NW2d 648 (2014).




3
    To establish undue influence,
                 . . . it must be shown that the grantor was subjected to threats,
         misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient
         to overpower volition, destroy free agency, and impel the grantor to act against
         the grantor's inclination and free will. Motive, opportunity, or even ability to
         control, in the absence of affirmative evidence that it was exercised, is not
         sufficient.

                A presumption of undue influence arises upon the introduction of evidence
         that would establish (1) the existence of a confidential or fiduciary relationship
         between the grantor and a fiduciary, (2) the fiduciary, or an interest represented
         by the fiduciary, benefits from a transaction, and (3) the fiduciary had an
         opportunity to influence the grantor’s decision in that transaction. [In re Gerald
         L. Pollack Trust, 309 Mich App 125, 149; 867 NW2d 884 (2015) (citation and
         quotation omitted).]
4
  Although not filed with petitioner’s brief in response to the motion for summary disposition, it
appears that petitioner submitted a deposition transcript to the court at the summary disposition
hearing. In this regard, we note that Renne’s deposition transcript is included in the lower court
file. Thus, it appears that Renne’s deposition transcript was the transcript that petitioner
submitted at the hearing.


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          At the outset, we note that respondent urges this Court to strike petitioner’s brief because
it fails to comply with the Court Rules. As respondent points out, petitioner’s statement of facts
contains no citation to the record, contrary to MCR 7.212(C)(6). Furthermore, although
petitioner’s argument cites what purports to be deposition transcripts, we note that not all of
these alleged transcripts are part of the record, and are thus not part of this appeal. See MCR
7.210(A) (“Appeals to the Court of Appeals are heard on the original record.”). See also
Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002) (“This Court's
review is limited to the record established by the trial court, and a party may not expand the
record on appeal.”).5 Although we decline to do so in this instance, we could, based on these
shortcomings, strike the nonconforming brief. See MCR 7.212(I).

        More importantly, we note that petitioner’s brief is lacking in two key areas, both of
which give us reason to decline to grant petitioner the relief he seeks. First, petitioner raises the
idea that he is entitled to a presumption of undue influence, but he cites little caselaw in this
complex area of the law and does little to explain the effect that this alleged presumption should
have in the context of a motion for summary disposition. We will not search for authority to
support petitioner’s position. Hughes v Almena Twp, 284 Mich App 50, 71-72; 771 NW2d 453
(2009). Likewise, we will not piece together the factual record to make petitioner’s case for him.
Second, petitioner’s brief makes no effort to address that portion of the trial court’s ruling which
deemed admitted respondent’s requests to admit. In particular, petitioner fails to address the
admissions which effectively stated that he had no evidence that Kutchinski or Highway—the
only individuals named in the petition—exerted undue influence over Wanda. Because
petitioner never responded to the requests to admit, MCR 2.312(B)(1) provides that these matters
were deemed admitted. Once deemed admitted, MCR 2.312(D) states that a matter is
“conclusively established unless the court on motion permits withdrawal or amendment of an
admission.” Such an admission amounts to a “formal concession” on the matter admitted. See
Radtke v Miller, Canfield, Paddock & Stone, 453 Mich 413, 420-421; 551 NW2d 698 (1996).
Here, petitioner never sought to withdraw or amend the admissions. On appeal, petitioner fails
to recognize the admissions; likewise, he makes no effort to argue how these admissions affect
this appeal, nor does he even respond to this portion of the trial court’s ruling. His failure to do
so is enough for this Court to decline to review this appeal. See Hughes, 284 Mich App at 71-72
(discussing abandonment). See also Derderian v Genesys Health Care Sys, 263 Mich App 364,
381; 689 NW2d 145 (2004) (refusing to review the plaintiffs’ claim where the plaintiff failed to
address the basis of the trial court’s ruling).

         Furthermore, we find that, on the record before us, summary disposition was appropriate
under MR 2.116(C)(10). “Under MCR 2.116(C)(10), the moving party must specifically identify
the issues for which no factual dispute exists and must support this claim with evidence such as
affidavits, depositions, admissions, or other documents.” Auto Owners Ins Co v Seils, 310 Mich
App 132, 154; 871 NW2d 530 (2015), citing MCR 2.116(G)(4). “If the moving party meets its
initial burden, the opposing party then has the burden of showing with evidentiary materials the


5
 And, we note that petitioner has not moved this Court, in accordance with MCR 7.216(A)(4), to
expand the record on appeal.


                                                 -4-
substance of which would be admissible that a genuine issue of disputed material fact exists.”
Id., citing MR 2.116(G)(4) and (6). The nonmoving party may not rest on mere allegations. Id.

        Here, respondent moved for summary disposition, alleging that no undue influence
occurred. In support of the motion, respondent attached documentary evidence, including
affidavits. This was sufficient to satisfy respondent’s initial burden of specifically identifying
the issues for which no factual dispute existed and providing the requisite documentary evidence
in support. See MCR 2.116(G)(4); Auto Owners Ins Co, 310 Mich App at 154. Respondent’s
efforts shifted the burden to petitioner. Petitioner responded to the motion for summary
disposition, but failed to provide any evidentiary materials to show that a genuine issue of
material fact existed. See Auto Owners Ins Co, 310 Mich App at 154. Instead, petitioner relied
on unsupported, conclusory allegations that a presumption of undue influence should arise under
the circumstances. This was not enough. See id. See also MCR 2.116(G)(4). In reaching this
conclusion, we note that petitioner’s response to the motion for summary disposition, as does his
brief on appeal, purported to cite deposition transcripts that were not in the record. This is not in
conformance with the Court Rules, which required petitioner to submit evidentiary materials, not
the mere promise or allegation of evidentiary materials. See Auto Owners Ins Co, 310 Mich App
at 154. We also note that petitioner attempted, on the day of the summary disposition hearing, to
provide the trial court with Renne’s deposition transcript. However, petitioner’s submission of
this transcript was untimely because the deposition and response were not filed and served “at
least 7 days before the hearing” on the motion for summary disposition.                        MCR
2.116(G)(1)(a)(ii).6 Petitioner’s brief not only fails to recognize that the deposition was
untimely, but it also fails to articulate an argument why this untimely deposition should even be
considered. Therefore, even if we were to overlook petitioner’s cursory briefing and failure to
recognize the effect of respondent’s requests for admissions in this case, we would still find that
summary disposition was appropriate, given the record before this Court.

       Affirmed.



                                                              /s/ Jane M. Beckering
                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Michael J. Kelly




6
  Moreover, we disagree with petitioner’s contention that Renne’s deposition was sufficient to
overcome respondent’s well-supported motion for summary disposition. The opportunities to
influence and “misinformation” given by Renne, as alleged by petitioner, are not borne out in her
deposition testimony. Rather, the testimony shows that Wanda approached Renne and discussed
changing the trust and disinheriting petitioner, and that Wanda informed Renne, Highway, and
Kutchinski that she (Wanda) wanted to change the trust. Thus, even considering this untimely
deposition, summary disposition was appropriate. See Brown v Garcia, __ Mich App __; __
NW2d __ (2015) (Docket Nos. 322401; 322402), slip op at 8-10.


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