                           STATE OF MICHIGAN

                             COURT OF APPEALS



WILLIAM E. KASBEN,                                                    UNPUBLISHED
                                                                      May 19, 2015
               Plaintiff-Appellant,

v                                                                     No. 314851
                                                                      Leelanau Circuit Court
JOSEPH T. KASBEN, JOHN M. KASBEN, and                                 LC No. 2001-005583-CH
BARBARA FIEBING,

               Defendants-Appellees,
and

BERYL W. KASBEN a/k/a BERYL W.
HOFFMAN a/k/a BERYL MARLENE WILSON,
WILLIAM E. KASBEN, Personal Representative
for the Estate of EDWIN J. KASBEN, and SSLJ
CORPORATION,

               Defendants.


Before: RONAYNE KRAUSE, P.J., and WILDER and STEPHENS, JJ.

RONAYNE KRAUSE, P.J. (dissenting)

        I respectfully dissent. The trial court certainly took some improper liberties with this
Court’s order on remand and interpreted this Court’s instructions rather loosely. While I am
disappointed in the trial court’s conduct, I nevertheless recognize that the trial court remains in
the better position to assess the credibility of the parties and is more intimately familiar with the
parties and the situation in this matter.1 I would therefore prefer to extend to the trial court the


1
  I take issue with the trial court’s hypothesis that certain facts “may not have been complete in
the prior record in this case and may therefore explain the Court of Appeals’ reversal of the trial
court’s determination.” That is possible. However, this Court is a court of record, and any
matters that a party or court wishes to be available for this Court’s consideration must be made a
part of the record. It is the responsibility of the parties and lower courts to ensure that the record
is as complete as they deem necessary; it is not the responsibility of this Court to conduct its own
audit of lower court records for completeness, and particularly not to conduct its own

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courtesy of some benefit of the doubt. I conclude that the trial court must, by necessary
implication, have made a determination of the appurtenance of the option agreements; I agree
with the majority that the trial court’s ruling must be construed as holding that the option
agreements did not run with the land. Unlike the majority, I agree that the option agreements do
not run with the land and do not believe this Court’s prior opinion mandates otherwise.
Consequently, I would affirm, because this Court generally affirms correct results, no matter the
reasoning of why they were achieved below. Leszczynski v Johnson, 155 Mich App 392, 396;
399 NW2d 70 (1986).

        “Whether a trial court followed an appellate court’s ruling on remand is a question of law
that this Court reviews de novo.” City of Kalamazoo v Dep’t of Corrections (After Remand), 229
Mich App 132, 134-135; 580 NW2d 475 (1998). “[W]hen an appellate court gives clear
instructions in its remand order, it is improper for a lower court to exceed the scope of the order.”
K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich App 523, 544; 705 NW2d 365
(2005). However, the trial court may consider on remand whatever is not inconsistent with the
judgment of the appellate court. Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959).

        In this Court’s prior opinion, this Court ruled that the option agreements “provide that
William Kasben has the right to buy the property at a specified price and a specified time” and
that they were “clear” that “William Kasben had the right to repurchase the property from Edwin
Kasben under the condition that Edwin Kasben 1) stopped farming, 2) decided to sell the
property; or 3) died.” Plaintiff makes much of the fact that the trial court nevertheless went on to
find ambiguity in the option agreements. I am not so concerned: the fact that this Court found it
unclear whether the option agreements ran with the land unambiguously shows that this Court
did not find the option agreements to be absolutely clear in all respects, but rather “clear” insofar
as they were definitely option agreements and definitely set forth the three possible events that
could trigger the options.

       The trial court’s observation that no option was triggered upon Ed making a gift of the
property is nothing but a necessary corollary of this Court’s findings. The trial court’s further
observation that if plaintiff “wished to exercise the option upon his father making a gift, then he
should have included that language in the deed which he drafted” is simply an elementary rule of
contracts, bordering on being a tautology. The trial court’s finding that the option agreements
“provide no clear triggering events” is, of course, incompatible with this Court’s prior opinion.
However, the trial court’s finding that they “provide no clear . . . methodology for resolving
ambiguities so that they can be reasonably enforced” is not contraindicated. Indeed, this Court’s
prior opinion cannot be construed as anything other than a holding that the agreements are
ambiguous under the circumstances at bar.

        This Court’s prior opinion necessarily also constitutes a holding that the options cannot
be exercised with the property now owned by parties other than Ed unless those options run with
the land. Otherwise, the question would be irrelevant and therefore moot. Finally, although the
rule of contra proferentem is not, strictly speaking, a true rule of construction and should only be

independent field research. This Court inherently can only work with the information it is given
in the record submitted to it.


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resorted to if all other attempts to discern the intent of the parties to a contract have failed, it is
properly applied in the absence of better evidence. Klapp v United Ins Group Agency, Inc, 468
Mich 459; 470-477; 663 NW2d 447 (2003).

        The trial court analyzed the circumstances under which the option agreements were
created. In particular, plaintiff and his wife “caused certain deeds to be recorded . . . ostensibly
involving conveyances from Ed Kasben to William and Beryl [his wife] of” the properties;
subsequently, Ed “complained and a criminal prosecution was pursued.” Ed’s wife, Leona, died
while the prosecution was pending, and

       the criminal cases were dismissed on the theory that Ed Kasben had provided
       certain deeds to Leona with instructions that they were not to be delivered to
       William and Beryl until [Ed] died. The story was that Leona improperly gave the
       deeds to William and Beryl who then caused them to be recorded together with
       other deeds upon which Ed Kasben’s signature had been forged. Beryl [], herself
       an attorney, and then immersed in contentious divorce proceedings with William,
       surprisingly took responsibility for forging Ed Kasben’s signature. Leona was not
       available to give her side of the story . . . So, to cause the dismissal of criminal
       charges brought against William and Beryl for improperly filing deeds and
       forging deeds, William agreed to deed the property back to his father but reserved
       options to himself.

The trial court deemed the option agreements to be based on no consideration whatsoever, but as
noted, this Court held otherwise, and the law of the case doctrine mandates that this Court and
the trial court adhere to that holding, irrespective of whether it is correct. Grievance
Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000). Nevertheless, the trial
court’s additional facts adduced on remand are highly relevant.

        The trial court’s reasoning was not specific, but the unambiguous import is that the initial
fraudulent transfer from Ed to William was understood to be something in the nature of a
prematurely-delivered gift causa mortis. A true gift causa mortis, of course, must “be made with
a view to the donor’s death from a present sickness or peril; that there be such present actual or
constructive delivery of the subject of the donation as the circumstances of the parties and nature
and situation of the property permit; and the gift conditioned to become absolute only on the
death of the donor, survived by the donee.” In re Reh’s Estate, 196 Mich 210, 218; 162 NW 978
(1917). Whether such a gift would have been valid is irrelevant, however; its relevance is that it
shows the parties’ intentions. The option agreements clearly were intended to effectuate roughly
the same result as the supposedly intended delivery of deeds upon Ed’s death. However, any
such intended future delivery can always be altered by the would-be donor prior to his or her
death. See Lumberg v Commonwealth Bank, 295 Mich 566, 568-569; 295 NW 266 (1940). It
therefore stands to reason that the omission of any option being triggered upon gifting the
property must have been intentional. It further stands to reason that any such gift would cut off
the availability of those options.

       As discussed, we all agree that the trial court’s opinion that it implicitly held that the
option agreements did not run with the land. I agree with that conclusion, and as a necessary
consequence, the gifts from Ed to his children terminated the availability of those options to

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plaintiff. I therefore find it unnecessary to address any other concerns raised on appeal, and I
would affirm.



                                                           /s/ Amy Ronayne Krause




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