                          STATE OF MICHIGAN

                            COURT OF APPEALS



LARRY J. HACKER and NANCY A. HACKER,                                 UNPUBLISHED
                                                                     September 29, 2015
               Plaintiffs-Appellants,

v                                                                    No. 322059
                                                                     Berrien Circuit Court
FARM BUREAU MUTUAL INSURANCE                                         LC No. 12-005986-GC
COMPANY OF MICHIGAN,

               Defendant-Appellee.


Before: BOONSTRA, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

        In this insurance dispute, plaintiffs appeal as of right the trial court’s judgment of no
cause of action that was entered on the basis of a jury’s verdict following a two-day trial. As
reflected in a special-verdict form, the jury determined that plaintiffs were not entitled to
recovery on their claim because they failed to substantially comply with a policy condition
requiring a sworn statement in proof of amount of loss. We affirm.

        Plaintiffs own several parcels of farm property in Berrien County, including the Redbud
Trail farm in Berrien Springs. Among other uses of their land, plaintiffs harvested grapes on
their properties. As part of that operation, plaintiffs used “grape posts.” However, between
November 2009 and “early March 2010,” plaintiffs removed a total of approximately 160 acres
worth of grape vines from their various parcels, including the Redbud farm. As a result,
plaintiffs had an abundance of unused grape posts, which they kept in piles on the Redbud farm.
Over the course of several months in 2010, plaintiffs sold many of these grape posts. By their
estimate, however, at least 5,684 posts still remained on the Redbud farm as of December 2010.

        Plaintiffs did not enter the Redbud farm between December 2010 and March 2011.
When they accessed the farm on March 3, 2011, they observed that a large portion of their grape
posts were missing. Plaintiffs notified the police and defendant, who hired an independent
claims adjuster to handle the claim. The parties met on the Redbud farm on March 8, 2011. At
that time, plaintiffs were able to provide the adjuster with rough estimates of how many posts
were originally on the property and how many had been sold, but could not give exact figures.
Further, they could not give an exact figure with respect to how many posts were still at the
Redbud farm. According to plaintiffs, defendant’s adjuster told them at that time to come up
with a figure as soon as practically possible. Over the course of the next several weeks, plaintiffs

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apparently had ongoing discussions with the adjuster to provide an “update” as to how many
posts remained, but there is no dispute that a final count was not provided at that time.

        On April 5, 2011, defendant sent plaintiffs a letter informing them that, pursuant to the
terms of their policy, they were required to submit a sworn statement in proof of amount of loss
within 30 days of the letter, i.e., May 5, 2011. A blank proof of loss form, as well as instructions
on how to fill out the form, were provided. The letter specifically indicated that any supporting
documentation must also be submitted. Plaintiffs subsequently submitted their first proof of loss
on April 20, 2011, but while the form was notarized, it was completely blank and had the word
“sample” written across it. No supporting documentation, such as receipts from the various sales
of posts made before the alleged theft, was provided. According to plaintiffs, the form was blank
because they had questions in regard to filling it out and defendant failed to provide any help
despite various requests.

        Meanwhile, an investigation of plaintiffs’ claim was conducted. It was eventually
completed on May 4, 2011. Subsequently, on May 5, 2011, the deadline for filing the proof of
loss, defendant sent plaintiffs another letter informing them that their incomplete proof of loss
had been rejected and that their claim was being denied because the investigation revealed that
the loss was only discovered upon taking inventory (an apparent policy exclusion).

        Unbeknownst to defendant, before the May 5, 2011 denial letter was sent, plaintiffs had
sent a second proof of loss. It was received on May 9, 2011, and the parties agree that it was
timely. The second proof of loss, while more complete, still contained several incomplete
portions and also contained only a “guestimate” of the amount of loss being claimed. According
to plaintiffs, the second form was filled out to the best of their abilities, using the information
they had at the time, after defendant continued being unreceptive to requests for assistance.
Defendant did not respond to this second proof of loss.

       Plaintiffs subsequently filed the instant lawsuit. Eventually, defendant moved for
summary disposition on the basis that plaintiffs had failed to comply with the proof of loss
requirement. The trial court denied the motion after finding that there were genuine issues of
material fact as to whether plaintiffs had substantially complied with the proof of loss
requirement in light of the information contained in the second proof of loss and the documents
previously provided to defendant on March 8, 2011.

        The case then proceeded to trial. Plaintiffs contended that they did everything they were
supposed to do and filled out the proof of loss forms to the best of their abilities, but were
hampered in their efforts by defendant’s lack of assistance. Plaintiffs conceded that they did not
ascertain a final count of missing posts until July 2011, several months after the claim was
denied, and did not provide this information or any supporting documentation until August 2012,
despite being asked for such documentation as early as April 2011. Plaintiffs claimed that it took
so long to ascertain the final count of missing posts because the posts had to be moved to another
location to be consolidated, because additional sales had to be completed, and because there was
other important farm work to be done.

        The issue of substantial compliance—along with three other defenses—were submitted to
the jury. The jury determined that plaintiffs failed to substantially comply with the proof of loss

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requirement, which was the first question on the special-verdict form. As such, the jury did not
need to reach, consider, and make a decision on any other defense or issue set forth in
subsequent questions on the special-verdict form. On the basis of the jury’s verdict, the trial
court entered a judgment of no cause of action in favor of defendant.

       Plaintiffs now appeal the trial court’s judgment and argue, for the first time, that
defendant either waived, or should have been estopped from raising, the defense of non-
compliance with the proof of loss requirement through its conduct and that the issue, therefore,
should have never been submitted to the jury. We conclude that plaintiffs have waived appellate
review of this argument because they acquiesced to litigating the issue of substantial compliance
before the jury, without ever attempting to litigate whether defendant waived or was estopped
from arguing lack of compliance as a defense.

        It is well established that “[a] party who waives a right is precluded from seeking
appellate review based on a denial of that right because waiver eliminates any error.” Cadle Co
v City of Kentwood, 285 Mich App 240, 255; 776 NW2d 145 (2009) (citation omitted). “[A]
waiver is a voluntary and intentional abandonment of a known right.” Quality Prod & Concepts
Co v Nagel Precision, Inc, 469 Mich 362, 374; 666 NW2d 251 (2003) (citation omitted). “The
usual manner of waiving a right is by acts which indicate an intention to relinquish it, or by so
neglecting and failing to act as to induce belief that it was the intention and purpose to waive.”
Cadle Co, 285 Mich App at 254-255 (quotation marks and citation omitted). “A party who
expressly agrees with an issue in the trial court cannot then take a contrary position on appeal.”
Grant v AAA Mich/Wis, Inc (On Remand), 272 Mich App 142, 148-149; 724 NW2d 498 (2006).
“A party is not allowed to assign as error on appeal something which his or her own counsel
deemed proper at trial since to do so would permit the party to harbor error as an appellate
parachute.” Marshall Lasser, PC v George, 252 Mich App 104, 109; 651 NW2d 158 (2002)
(quotation marks and citation omitted).

        The issue of noncompliance with the proof of loss requirement was raised as a defense in
defendant’s answer and affirmative defenses, and thus, it cannot be disputed that plaintiffs were
aware of defendant’s intent to raise that defense from the outset of these proceedings. Yet,
plaintiffs took no action in the trial court to preclude defendant from raising this defense, such as
by moving the trial court for summary disposition on that defense. See MCR 2.116(B)(1).
Likewise, when defendant filed its motion for summary disposition, based solely on the issue of
noncompliance with the proof of loss requirement, plaintiffs, while responding to the motion, did
not expressly argue that defendant had waived its right to assert the defense or that it should be
estopped from doing so. Finally, even after the trial court ruled that there were material
questions of fact regarding plaintiffs’ compliance with the proof of loss requirement, such that
the issue must be submitted to a jury, plaintiffs still made no effort to preclude defendant from
raising this defense at trial. To the contrary, they agreed to litigate the issue. At trial, plaintiffs
made no objection to any evidence bearing on this defense. Moreover, they affirmatively
acquiesced to the verdict form which requested the jury to consider the defense. They did not
object to the jury instructions or request any instructions on the issue of waiver/estoppel.

        From the above facts, it is abundantly clear that plaintiffs affirmatively agreed to litigate
the issue of substantial compliance with the proof of loss requirement, absent any consideration
by the jury of waiver or estoppel. At the very least, plaintiffs’ failure to undertake any measures

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whatsoever to preclude the issue from being submitted to the jury induced belief that it was the
intention and purpose to try the issue. Cadle Co, 285 Mich App at 255. As such, plaintiffs have
waived any argument regarding defendant’s ability to raise the non-compliance defense and will
not now be heard to complain that the issue should have never been submitted to the jury. Grant,
272 Mich App at 148-149; Marshall Lasser, PC, 252 Mich App at 109. Plaintiffs have likewise
waived any claim that the jury should have addressed or been instructed on issues pertaining to
waiver or estoppel as a threshold matter before potentially tackling the issue of substantial
compliance. And any suggestion by plaintiffs that they were entitled to summary disposition on
the issue of compliance in light of waiver or estoppel principles is also rejected, as those issues
were never raised by plaintiffs.

        Plaintiffs raise additional issues in their statement of questions presented regarding the
adequacy of defendant’s investigation, the trial court’s decisions denying admission of various
pieces of evidence, and the trial court’s apparent failure to provide the jury with a copy of
plaintiff Larry Hacker’s full deposition. We conclude that these issues are abandoned because
there was no accompanying argument. See FMB-First Mich Bank v Bailey, 232 Mich App 711,
717; 591 NW2d 676 (1998). “It is axiomatic that where a party fails to brief the merits of an
allegation of error, the issue is deemed abandoned by the Court.” Prince v MacDonald, 237
Mich App 186, 197; 602 NW2d 834 (1999) (citations omitted). In any event, none of these
issues have any merit. Finally, plaintiffs also raise three additional arguments in the argument
section of their brief regarding the propriety of additional defenses raised by defendant at trial
and whether plaintiffs are entitled to sanctions, penalty interest, court costs, and attorneys fees
because defendant was “grossly negligent” in denying their claim and because defendant raised
frivolous defenses. First, we conclude that these arguments are abandoned because they were
not included in plaintiffs’ statement of the questions presented. MCR 7.212(C)(5). Moreover,
under the circumstances and given the nature of the jury’s verdict, these arguments are moot and
irrelevant, and they lack merit in any event.

      Affirmed. Having fully prevailed on appeal, defendant is awarded taxable costs pursuant
to MCR 7.219.



                                                            /s/ Mark T. Boonstra
                                                            /s/ William B. Murphy
                                                            /s/ Jane E. Markey




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