                          STATE OF MICHIGAN

                           COURT OF APPEALS



PAMELA J. ZELLER, Individually and as Trustee                      UNPUBLISHED
of the PAMELA J. ZELLER TRUST,                                     October 20, 2016

              Plaintiff-Appellant,

v                                                                  No. 328086
                                                                   Kalamazoo Circuit Court
PNC FINANCIAL SERVICES GROUP, INC.,                                LC No. 2013-000483-CK
PNC INVESTMENTS, LLC, PNC BANK NA,
doing business as PNC WEALTH
MANAGEMENT, and DR. CHARLES ZELLER,

              Defendants-Appellees.


Before: K. F. KELLY, P.J., and O’CONNELL and BOONSTRA, JJ.

PER CURIAM.

        Plaintiffs, Pamela J. Zeller and the Pamela J. Zeller Trust, appeal by leave granted1 the
trial court’s order granting summary disposition to defendants PNC Financial Services Group,
Inc., PNC Investments, LLC, and PNC Bank NA (collectively, PNC) under MCR 2.116(C)(10),
and the trial court’s order granting summary disposition to Dr. Charles Zeller under MCR
2.116(C)(7) on grounds of res judicata. We affirm.

                                I. FACTUAL BACKGROUND

       Pamela and Charles Zeller were married in 1975. In 1990, they formed the Pamela J.
Zeller Trust and named Pamela grantor and first trustee. In December 1999, Pamela granted
Charles a durable power of attorney. In 2003, Pamela entered into an agency agreement with
National City Bank, PNC’s predecessor in interest. The agency agreement provided that PNC
would manage Pamela’s assets, including the trust. Charles filed for divorce in August 2010
and, on October 24, 2011, a judgment of divorce was entered that divided the parties’ assets and
dissolved the marriage.



1
  Pamela J Zeller Trust v PNC Fin Servs Group, unpublished order of the Court of Appeals,
entered October 23, 2015 (Docket No. 328086).


                                               -1-
        Pamela testified during the divorce proceedings that between 2000 and 2010, Charles had
directed PNC to transfer about $800,000 of the trust’s assets to his own accounts and other,
unknown places. Following the divorce, Pamela filed the present action against Charles and
PNC. Charles moved for summary disposition under MCR 2.116(C)(7), which the trial court
granted on res judicata grounds. Pamela and PNC filed competing motions for summary
disposition. The trial court granted summary disposition in favor of PNC, ruling that Charles
had possessed written authorization to transfer assets from the trust and that, under the applicable
contract language, PNC was not liable to Pamela.

                                  II. CLAIMS AGAINST PNC

                                        A. STANDARDS

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter
of law.” A genuine issue of material fact exists if, when viewing the record in the light most
favorable to the nonmoving party, reasonable minds could differ on the issue. Gorman, 302
Mich App at 116. We review de novo the interpretation of contractual language. Klapp v United
Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003).

        The goal of contractual interpretation is to honor the parties’ intent and to enforce the
contract’s plain terms. Davis v LaFontaine Motors, Inc, 271 Mich App 68, 73; 719 NW2d 890
(2006). We discern the parties’ intent from the contract’s language. Id. If the contract’s
language is unambiguous, we interpret the contract as a matter of law. Klapp, 468 Mich at 469.
We construe contractual terms in context, according to their commonly used meanings.
Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1990). If no
reasonable person could dispute the meaning of the contract’s plain language, we must enforce
that language as written. Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005).

                                          B. ANALYSIS

       First, Pamela contends that the trial court erroneously granted summary disposition to
PNC because the agency agreement did not give it authority to distribute trust assets on Charles’s
orders. We disagree.

       Pamela and PNC’s agency agreement governed their relationship.               The agreement
provides in pertinent part:

               10.     Communications, Notice. Agent may safely rely and act upon any
       directions believed by Agent to be genuine, including, but not limited to,
       directions given in written, verbal, telegraphic, or facsimile form by Principal or
       by any one or more persons specifically authorized in writing by Principal to give
       directions to Agent. Agent may rely upon the continuance of any such
       authorization until notified in writing to the contrary and shall not be liable for
       any loss resulting from its reliance thereon if it acts in good faith. . . . [Emphasis
       added.]
                                                -2-
Pamela’s durable power of attorney authorized Charles to make withdrawals from the Trust to

        . . . make gifts of property including the forgiveness of debts (and to make
       withdrawals from the Pamela J. Zeller Trust to make gifts of property) to any
       person, specifically including my Agent, and to carry out an annual exclusion
       gifting program or pattern previously established by me, to take advantage of
       charitable contribution income tax deductions, as may be necessary or beneficial
       with reference to the ultimate taxation of my estate at the time of my death . . . .
       [Emphasis added.]

Accordingly, Pamela’s durable power of attorney authorized Charles to make withdrawals from
the trust and gift those withdrawals to himself. The parties’ estate planning attorney averred that
he provided a copy of Pamela’s estate planning documents, including this power of attorney, to
PNC. Charles was thus authorized in writing to give directions to PNC, and PNC had good
reason to believe that Charles’s directions were genuine.

        Pamela contends that the “gifts” section does not apply because Charles did not make
gifts to himself for tax purposes. However, the grammar of the gifts paragraph has two distinct
clauses, one before the word “and” and the other after the word “and.” The paragraph provided
Charles with two distinct powers: (1) the power to make withdrawals from the trust to gift
property to any person, including himself, and (2) the power to engage in annual gifting for tax
benefits. We reject Pamela’s argument because the plain language of the power of attorney
authorized Charles to make withdrawals from the trust and gift them to anyone, including
himself. PNC was entitled to rely on this written authorization under its agency agreement with
Pamela. PNC did not act outside of its agreement.

       Pamela’s claims of conversion and breach of contract, which were both premised on
PNC’s alleged actions outside of its authority under the parties’ contract, necessarily failed. We
conclude that the trial court properly granted summary disposition on Pamela’s claims against
PNC because PNC was entitled to judgment as a matter of law.

                              III. CLAIMS AGAINST CHARLES

                                        A. STANDARDS

        This Court reviews de novo the trial court’s determination on a motion for summary
disposition under MCR 2.116(C)(7), Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217
(2008), and reviews de novo whether res judicata bars a subsequent suit, Pierson Sand & Gravel,
Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153 (1999). The doctrine of res judicata
“prevents[s] multiple suits litigating the same cause of action.” Adair v State, 470 Mich 105,
121; 680 NW2d 386 (2004). Res judicata bars actions where “(1) the prior action was decided
on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the
second case was, or could have been, resolved in the first.” Id.

                                         B. ANALYSIS




                                                -3-
        Pamela contends that the trial court erroneously granted summary disposition to Charles
on res judicata grounds because the trust assets were not in issue in the prior divorce case. We
disagree.

        The trial court properly ruled that Charles’s withdrawal of the trust assets was actually
litigated in the divorce case. In that case, Pamela testified regarding Charles’s withdrawals from
the trust and introduced evidence of those withdrawals. The divorce judgment also necessarily
included the trust, or what remained of its assets, because it provided that the divorce judgment
applied to those assets that the parties had disclosed. The trust assets were disclosed and
discussed during the divorce proceedings, including whether Charles acted wrongly in
transferring those assets. The same essential facts were necessary to the divorce action as to this
action—specifically, whether Charles inappropriately received, concealed, or otherwise disposed
of marital property, including the trust assets. Regardless of where the assets were located at the
time of the divorce, they were necessarily part of the property that the parties’ divorce decree
divided. Accordingly, issues regarding Charles’s withdrawals from the trust were actually
litigated in the prior proceeding between the parties.2 We conclude that the trial court properly
granted summary disposition to Charles on res judicata grounds.

       We affirm. As the prevailing parties, PNC and Charles may tax costs. MCR 7.219(A).

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Peter D. O’Connell
                                                            /s/ Mark T. Boonstra




2
  The trial court also expressly stated that it retained jurisdiction to enforce the judgment of
divorce and, accordingly, the trial court would lack jurisdiction in this case under MCL
600.1021(1)(a) to address these issues. See Bowie v Archer, 441 Mich 23, 56; 460 NW2d 568
(1992).


                                                -4-
