                       STATE OF MICHIGAN

                       COURT OF APPEALS



ELAINE STEELE and ROSA & RAYMOND         UNPUBLISHED
PARKS INSTITUTE FOR SELF                 March 20, 2018
DEVELOPMENT,

          Plaintiffs-Appellants,

v                                        No. 332305
                                         Wayne Probate Court
SYLVESTER McCAULEY, DEBORAH ROSS,        LC No. 13-791382-CZ
ASHEBER MACHARIA, ROBERT D.
McCAULEY, YVONNE TRUSSEL, ROSALIND       Wayne Circuit Court
BRIDGEFORTH, SUSAN McCAULEY,             LC No. 13-002255-CK
SHIRLEY McCAULEY, SHEILA McCAULEY
KEYS, RICHARD McCAULEY, CHERYL
McCAULEY, RHEA McCAULEY, and
WILLIAM McCAULEY,

          Defendants-Appellees.


ELAINE STEELE and ROSA & RAYMOND
PARKS INSTITUTE FOR SELF
DEVELOPMENT,

          Plaintiffs-Appellants,
and

STEVEN G. COHEN,

          Appellant,


v                                        No. 334192
                                         Wayne Probate Court
SYLVESTER McCAULEY, DEBORAH ROSS,        LC No. 13-791382-CZ
ASHEBER MACHARIA, ROBERT D.
McCAULEY, YVONNE TRUSSEL, ROSALIND       Wayne Circuit Court
BRIDGEFORTH, SUSAN McCAULEY,             LC No. 13-002255-CK
SHIRLEY McCAULEY, SHEILA McCAULEY
KEYS, RICHARD McCAULEY, CHERYL

                                   -1-
McCAULEY, RHEA McCAULEY, and
WILLIAM McCAULEY,

              Defendants-Appellees.


In re ESTATE OF ROSA LOUISE PARKS.


ELAINE STEELE and ROSA & RAYMOND
PARKS INSTITUTE FOR SELF
DEVELOPMENT,

              Petitioners-Appellants,

v                                                                  No. 339192
                                                                   Wayne Probate Court
SYLVESTER McCAULEY, DEBORAH ROSS,                                  LC Nos. 2005-698046-DE and
ASHEBER MACHARIA, ROBERT D.                                                2006-707697-TV
McCAULEY, YVONNE TRUSSEL, ROSALIND
BRIDGEFORTH, SUSAN McCAULEY,
SHIRLEY McCAULEY, SHEILA McCAULEY
KEYS, RICHARD McCAULEY, CHERYL
McCAULEY, RHEA McCAULEY, and
WILLIAM McCAULEY,

              Respondents-Appellees.


Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

        These consolidated appeals involve a dispute between plaintiffs, Elaine Steele and the
Rosa & Raymond Parks Institute for Self-Development (“plaintiffs”, “Steele” and “the
Institute”), and defendants, the nieces and nephews of the iconic civil rights pioneer Rosa Parks
(“defendants”), over a coat that Parks allegedly wore when she was arrested for refusing to give
up her seat to a white woman on a city bus. Plaintiffs originally filed suit in Wayne Circuit
Court for breach of contract and fraud based on defendants’ failure to turn over the coat as
agreed to in the underlying probate court dispute. The circuit court concluded that it lacked
subject-matter jurisdiction over the controversy and transferred the matter to the probate court.
Following a number of hearings, the probate court concluded that plaintiffs’ claims were barred
by res judicata and imposed sanctions against plaintiffs for bringing a frivolous lawsuit.

       Docket Nos. 332305 and 334192 arise from these circuit court and probate orders. There
are two docket numbers because plaintiffs’ attorney filed a brief in his individual capacity, not
knowing whether the sanctions imposed were to be paid by plaintiffs for the attorney.
                                               -2-
        Docket No. 339192 relates to proceedings that occurred after the probate court dismissed
plaintiffs’ claims on the basis of res judicata. In that same order, the probate court invited
plaintiffs to file a petition regarding the value of the coat to determine the amount, if any,
sanctions were due plaintiffs for defendants’ failure to abide by the previous settlement
agreement. The probate court ultimately concluded that it could not properly determine the
coat’s separate value and declined to sanction defendants.

          Finding no errors warranting reversal, we affirm the circuit court and probate court
orders.

                        I. BASIC FACTS AND PROCEDURAL HISTORY

                               A. CIRCUIT COURT PROCEEDINGS

       In 2013, plaintiffs filed suit in the circuit court alleging breach of contract and fraud.
Although plaintiffs argued that their claims arose out of a March 2007 settlement agreement in
the probate court, they claimed that the action was not within the jurisdiction of the probate court
because the claims did not relate to the settlement of the estate or property of the estate.

        Plaintiffs alleged that, in exchange for agreeing not to challenge Park’s will, defendants
entered into the 2007 settlement agreement in which plaintiffs agreed to pay defendants 20% of
the net proceeds generated from the licensing of intellectual property rights that were owned by
the Institute. In paragraph 5(a) of the settlement agreement, the Institute agreed to turn over
control of its artifact collection to a Marketing Committee that would arrange for the sale or
license of the artifacts. Defendants agreed to turn over the coat worn by Parks on the date of her
arrest. The paragraph provided:

          a.      Marketable Property. “Marketable Property” shall mean all tangible
          personal property identified on Exhibit A to this agreement, which will be
          attached as a supplement to this Agreement within 21 days, following a physical
          inspection by Mrs. Steele and a representative of the Institute of the property held
          by the personal representatives. The Heirs [defendants] shall have a
          corresponding opportunity to conduct a physical inspection of said property
          within 21 days. The Heirs claim to possess the coat worn by Rosa Parks on the
          date of her arrest on the bus (the “Coat”), and the Heirs acknowledge and agree
          that the Coat shall be included in Marketable Property. The parties agree to work
          cooperatively toward the purchase of an insurance policy to cover the property in
          the possession of the personal representatives against casualty or other loss, the
          premium of which shall be paid by the Estate. [Emphasis added.]

However, in an affidavit dated August 27, 2008, Susan McCauley, the niece to whom the coat
was given when McCauley was a student at Michigan State University, averred that she did not
have the coat. She believed that the coat was donated to the Martin Luther King Center, but she
had no evidence of such a donation.

        Plaintiffs alleged that “[i]t is apparent that the representation was made to induce the
Institute to place control of its artifacts in the Marketing Committee and pay Defendants a
portion of proceeds from the sale or license of the artifacts.” Count I of the complaint alleged
                                                  -3-
that defendants entered into a joint venture to breach the settlement agreement by failing to
deliver the coat. Count II of the complaint alleged that defendants entered into a joint venture to
breach the settlement agreement by violating their “obligation of good faith in the performance
of the settlement agreement.” Count III of plaintiffs’ complaint alleged that defendants entered
into a joint venture to fraudulently induce the settlement agreement by indicating that they
possessed the coat.

        In lieu of filing an answer to plaintiffs’ complaint, defendants filed a motion for summary
disposition or transfer of the matter to the probate court. Defendants argued that the probate
court had exclusive jurisdiction of plaintiffs’ claims because the claims clearly arose from and
were related to the administration of Parks’s estate. Defendants’ motion referenced the
contentious history between the probate court and plaintiffs’ attorney and suggested that
plaintiffs brought this action in the circuit court to avoid litigating the matter in the probate court.
Defendants also argued that the probate court addressed the coat matter on two prior occasions
and that plaintiffs were “attempting to obtain a ‘second bite of the apple.’”

       The two instances when the probate court addressed the missing coat was an August 10,
2009 order denying plaintiffs’ motion for arbitration, and a January 13, 2010 order granting
enforcement of court orders. The 2009 opinion provided:

       As to the Heirs’ failure to locate and deliver the Coat worn by Mrs. Parks, this
       Court finds a breach of the Settlement Agreement. The proper remedy, however,
       for the Heirs’ apparent breach of ¶ 5 of the Settlement Agreement is not
       arbitration. The Court finds no fraud or intentional wrongdoing on the part of the
       Heirs on the basis of the Affidavit of Susan D. McCauley, a niece of the
       Decedent. The Heirs’ failure to comply, however, does warrant a sanction to be
       determined by the Court. Attorney Cohen is entitled to his reasonable costs and
       attorney fees associated specifically with the Institute and Steele’s efforts to
       retrieve this coat from the Heirs as promised. In this regard, Attorney Cohen may
       submit such a request for approval of such fees within fourteen (14) days of the
       date of this Opinion.

The January 13, 2010 order provided:

               IT IS ALSO HEREBY ORDERED THAT the Rosa & Raymond Parks
       Institute shall file an Accounting of all monies received by CMG according to the
       information provided by CMG within thirty (30) days of the date of this Opinion.
       Upon its filing, a hearing will be set by the Court to reconcile the Account and
       determine the amount of any setoffs, including but not limited to any setoffs owed
       to Steele and the Institute for the Heirs’ failure to turn over Mrs. Park’s Coat
       according to the Settlement Agreement.

        Plaintiffs responded that although the claims had a connection to the estate through the
settlement agreement, the claims did not involve the internal affairs or administration of the
estate. The circuit court disagreed, granted defendants’ motion for summary disposition, and
transferred the matter to Wayne County Probate Court.


                                                  -4-
                             B. PROBATE COURT PROCEEDINGS

       Upon receiving the case from the circuit court, the probate court ordered plaintiffs to file
a new complaint. Plaintiffs’ amended complaint mirrored the circuit court complaint except for
the captioning and except for the fact that plaintiffs protested jurisdiction.

        Defendants filed a motion for summary disposition on February 26, 2014. Defendants
argued that plaintiffs’ action was barred by res judicata and collateral estoppel because the
probate court had already addressed the issue of the missing coat on two prior occasions.
Defendants requested sanctions under MCR 2.114(E), claiming that plaintiffs’ action was
frivolous.

        Plaintiffs responded that they were not estopped from bringing their complaint because
no prior action for breach of contract was ever brought. Plaintiffs claimed that they were entitled
to summary disposition under MCR 2.116(I)(2) because there was no genuine issue of material
fact that defendants breached the settlement agreement.

        The probate court determined that plaintiffs’ claims were barred by res judicata and
collateral estoppel but invited plaintiffs to file a petition regarding the valuation of the coat and a
setoff in case number 2006-707697-TV and 2005-698046-DE. The probate court further
concluded that plaintiffs’ complaint was frivolous. Defendants were awarded a total of
$19,456.08 – $14,083.08 in fees and costs for Attorney Lawrence Pepper and $5,373 in fees for
Howard Gurwin. Further facts regarding the probate court’s penalty award will be discussed in
Section IV of this opinion.

                           C. 2005-698046-DE AND 2006-707697-TV

         Plaintiffs1 filed an action for the valuation of the coat on April 18, 2016. The facts
surrounding this opinion will be discussed in Section V of this opinion at length. The probate
court ultimately concluded that plaintiffs were not entitled to a jury trial on the amount of
sanctions and that, even with plaintiffs’ 84-page appraisal, it was impossible to determine the
coat’s value on the record. The probate court, therefore, declined to sanction defendants for their
failure to turn over the coat as agreed to in the settlement agreement.

                            II. SUBJECT MATTER JURISDICTION

        Plaintiffs argue that the circuit court erred when it determined that it did not have subject
matter jurisdiction over plaintiffs’ claims. We disagree.

              This Court reviews de novo a trial court’s decision to grant or deny
       summary disposition. Jurisdictional questions under MCR 2.116(C)(4) are
       questions of law that are also reviewed de novo. Similarly, issues of statutory


1
  We continue to refer to the parties as “plaintiffs” and “defendants” in lieu of “petitioners” and
“respondents” for the sake of continuity.


                                                 -5-
       interpretation are questions of law that are reviewed de novo on appeal. A trial
       court is duty-bound to recognize the limits of its subject-matter jurisdiction and
       must dismiss an action when subject-matter jurisdiction is not present.

               MCR 2.116(C)(4) permits a trial court to dismiss a complaint when “[t]he
       court lacks jurisdiction of the subject matter.” . . . So, when reviewing a motion
       for summary disposition brought under MCR 2.116(C)(4) that asserts the court
       lacks subject-matter jurisdiction, the court must determine whether the pleadings
       demonstrate that the defendant is entitled to judgment as a matter of law, or
       whether the affidavits and other proofs show that there was no genuine issue of
       material fact. [Meisner Law Group PC v Weston Downs Condo Assn, ___ Mich
       App ___; ___ NW2d ___ (October 24, 2017), slip op, p 5 (some citations and
       quotation marks omitted.]

      Probate courts are vested with exclusive jurisdiction in a number of situations. MCL
700.1302(a) provides:

       The court has exclusive legal and equitable jurisdiction of all of the following:

       (a) A matter that relates to the settlement of a deceased individual’s estate,
       whether testate or intestate, who was at the time of death domiciled in the county
       or was at the time of death domiciled out of state leaving an estate within the
       county to be administered, including, but not limited to, all of the following
       proceedings:

       (i) The internal affairs of the estate.

       (ii) Estate administration, settlement, and distribution.

       (iii) Declaration of rights that involve an estate, devisee, heir, or fiduciary.

       (iv) Construction of a will.

       (v) Determination of heirs.

       (vi) Determination of death of an accident or disaster victim under section 1208.

        On appeal, plaintiffs argue that their claims for breach of contract and fraud may have
been “connected to” the probate case, but that the claims had nothing to do with the actual
administration of the estate. Plaintiffs’ argument is meritless, at best. “[A] court is not bound by
a party’s choice of labels.” Attorney Gen v Merck Sharp & Dohme Corp, 292 Mich App 1, 9–
10; 807 NW2d 343 (2011). Instead, a court must “determine the gravamen of a party’s claim by
reviewing the entire claim, and a party cannot avoid dismissal of a cause of action by artful
pleading.” Id. This Court need only look at plaintiffs’ own complaint to discern that their claims
involve the internal affairs of the state and the estate’s administration, settlement and
distribution.



                                                 -6-
        For example, plaintiffs’ circuit court complaint alleged that “[s]ince entering into the
settlement agreement, Defendants have, through their support of forfeiture proceedings
undertaken by court-appointed estate fiduciaries, repeatedly undermined the interests of
Plaintiffs under the settlement agreement in breach of their obligation to exercise good faith in
the performance of the settlement agreement.”

        Count I of plaintiffs’ complaint alleged that defendants entered into a joint venture to
breach the settlement agreement by failing to deliver the coat. As to that count, plaintiffs made
the following request:

              Therefore, Plaintiffs request an order disbanding the Marketing
       Committee established under the settlement agreement and declaring the Institute
       the owner of all right, title and interest in the civil rights artifact collection
       referenced in the settlement agreement, free from any and all claims of the
       Defendants. In the alternative, Plaintiffs seek an award of money damages.

        Count II of plaintiffs’ complaint alleged that defendants entered into a joint venture to
breach the settlement agreement by violating their “obligation of good faith in the performance
of the settlement agreement.” As to Count II, plaintiffs requested the following relief:

               Therefore, Plaintiffs request an order stating that all further performance
       by the Plaintiffs under the settlement agreement is excused due to the material
       breach and/or failure of consideration caused by Defendants and providing, more
       specifically, that Plaintiffs are excused from the obligation to pay 20% of net
       intellectual property royalties to Defendants and that Plaintiffs are excused from
       the obligation to pay Defendants 20% of net proceeds from the sale or license of
       the Institute’s civil rights artifact collection. In the alternative, Plaintiffs seek an
       award of money damages. [Circuit Court Complaint, ¶ 43.]

        Finally, Count III of plaintiffs’ complaint alleged that defendants entered into a joint
venture to fraudulently induce the settlement agreement by indicating that they possessed the
coat. Plaintiffs alleged that defendants’ misrepresentation comprised a fraud that resulted in the
rescission of ¶ 5(a) of the settlement agreement. As to Count III, plaintiffs requested the
following relief:

              Therefore, Plaintiffs request an order disbanding the Marketing
       Committee established under the settlement agreement and declaring the Institute
       the owner of all right, title and interest in the civil rights artifact collection
       referenced in the settlement agreement, free from any and all claims of the
       Defendants. In the alternative, Plaintiffs seek an award of money damages.




                                                 -7-
       Clearly, plaintiffs’ claims and the relief they sought would have impacted the
administration of the estate.2 The case at bar involves the settlement agreement that settled
formal probate court challenges to Parks’s will, the trust and assignment of publicity. The
settlement was entered into as part of the administration of the estate and trust. Plaintiffs’
claims, which sought to impact the settlement agreement and thereby impact the estate itself,
were within the exclusive jurisdiction of the probate court.

                    III. RES JUDICATA AND COLLATERAL ESTOPPEL

        Plaintiffs argue that the probate court erred in dismissing plaintiffs’ complaint on the
basis of res judicata and collateral estoppel. We disagree.

        Summary disposition is appropriate under MCR 2.116(C)(7) if a claim is barred by a
prior judgment. RDM Holdings, LTD v Continental Plastics Co, 281 Mich App 678, 687; 762
NW2d 529 (2008).

               Under MCR 2.116(C)(7) (claim barred by prior judgment, i.e., res
       judicata), this Court must consider not only the pleadings, but also any affidavits,
       depositions, admissions, or other documentary evidence filed or submitted by the
       parties. The contents of the complaint must be accepted as true unless
       contradicted by the documentary evidence. This Court must consider the
       documentary evidence in a light most favorable to the nonmoving party. If there is
       no factual dispute, whether a plaintiff’s claim is barred under a principle set forth
       in MCR 2.116(C)(7) is a question of law for the court to decide. If a factual
       dispute exists, however, summary disposition is not appropriate. [RDM Holdings,
       281 Mich App at 687 (citations omitted).]

        “The doctrine of res judicata is intended to relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication, that is, to
foster the finality of litigation.” Begin v Mich Bell Tel Co, 284 Mich App 581, 598; 773 NW2d
271 (2009), overruled on other grounds 494 Mich 10; 831 NW2d 849 (2013).

               Consequently, res judicata bars a subsequent action between the same
       parties when the evidence or essential facts are identical. A second action is
       barred when (1) the first action was decided on the merits, (2) the matter
       contested in the second action was or could have been resolved in the first, and (3)
       both actions involve the same parties or their privies.

              Michigan courts have broadly applied the doctrine of res judicata. They
       have barred, not only claims already litigated, but every claim arising from the
       same transaction that the parties, exercising reasonable diligence, could have


2
 Defendant cites an unpublished case in support of its position. Because it is unpublished, the
case is unavailing lacks precedential value. MCR 7.215(C)(1). Although defendant cites the
case as persuasive authority, it is not.


                                                -8-
       raised but did not. [Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999)
       (internal citations omitted).]

Similarly,

               Collateral estoppel bars relitigation of an issue in a new action arising
       between the same parties or their privies when the earlier proceeding resulted in a
       valid final judgment and the issue in question was actually and necessarily
       determined in that prior proceeding. The doctrine bars relitigation of issues when
       the parties had a full and fair opportunity to litigate those issues in an earlier
       action. A decision is final when all appeals have been exhausted or when the time
       available for an appeal has passed. [Leahy v Orion Twp, 269 Mich App 527, 530;
       711 NW2d 438 (2006) (internal citations omitted).]

         The coat issue was raised and addressed by the probate court on two separate occasions.
First, in its August 10, 2009 opinion denying plaintiffs’ motion for arbitration and then in its
January 13, 2010 opinion granting enforcement of its previous orders. Plaintiffs are precluded
from bringing another action regarding the same issue. Once again, plaintiffs’ own words are the
best evidence of their motives. On this particular issue, plaintiffs’ arguments are frivolous. For
example, in their appellate brief as it relates to the probate court’s August 10, 2009 order denying
plaintiffs’ motion for arbitration, plaintiffs write:

               The procedure for settling disputes arising under the [settlement]
       agreement is somewhat murky. The settlement agreement requires the parties to
       tender all disputes (including matters within the probate court’s jurisdiction and
       those outside its jurisdiction) to the probate court for informal resolution prior to
       invoking arbitration. Plaintiffs believed at the time that a motion in the probate
       court to compel arbitration was a proper vehicle for tendering the dispute to the
       probate court and invoking arbitration. In retrospect, Plaintiffs believe they were
       in error. The probate court clearly did not have jurisdiction to adjudicate
       controversies unconnected with Estate administration, such as the coat
       controversy. Accordingly, the probate court did not have jurisdiction to order
       arbitration of the coat controversy. The Plaintiffs’ motion to compel arbitration
       was proper except to the extent it sought to compel arbitration of the coat
       controversy.

                                              * * *

               As discussed above, the probate court did not have jurisdiction to compel
       arbitration of the coat controversy because it does not involve Estate property.
       The probate court’s denial of the motion was, therefore, harmless.

                                              * * *

               The probate court’s findings that Defendants committed a breach of
       contract and were liable for costs and attorney fees, while not adverse to
       Plaintiffs’ interests, are nonetheless troubling on several levels. As previously


                                                -9-
       discussed, the probate court did not have jurisdiction to enter these extra rulings
       because the coat controversy did not involve Estate property.

        In this argument, plaintiffs acknowledge that the probate court specifically found that
defendants breached the settlement agreement. Plaintiffs explain that they did not file an appeal
because it was not a final order and because the order did not contain any “relief adverse to
Plaintiffs’ interests.” Plaintiffs further explained that they did not do as the court requested and
file a request for attorney fees “because they realized that the probate [court] did not have
jurisdiction in the matter.”

       Plaintiffs brought the coat issue to the probate court’s attention, resulting in the 2009 and
2010 orders. To the extent plaintiffs attempt to collaterally attack the probate court’s ability to
dispose of the issue, “[a]n appellant cannot contribute to error by plan or design and then argue
error on appeal.” Munson Med Ctr v Auto Club Ins Ass’n, 218 Mich App 375, 388; 554 NW2d
49 (1996).

                                        IV. SANCTIONS

        Plaintiffs argue that their complaint was not frivolous and that the probate court erred in
assessing sanctions against them. They further argue that the probate court erred in determining
the amount of the sanction. We disagree.

        “A trial court’s finding that an action is frivolous is reviewed for clear error.” Kitchen v
Kitchen, 465 Mich 654, 662; 641 NW2d 245 (2002). A decision is clearly erroneous where,
although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been made. Id. at 661-662. A trial court’s determination of the
amount of the sanctions imposed is reviewed for an abuse of discretion. Vittiglio v Vittiglio, 297
Mich App 391, 408; 824 NW2d 591 (2012), lv den 493 Mich 936 (2013). “A trial court abuses
its discretion when its decision results in an outcome falling outside the range of principled
outcomes.” Dep’t of Transp v American Motorists Ins Co, 305 Mich App 250, 254; 852 NW2d
645 (2014).
        MCR 2.114(E) and (F) provide:

       (E) Sanctions for Violation. If a document is signed in violation of this rule, the
       court, on the motion of a party or on its own initiative, shall impose upon the
       person who signed it, a represented party, or both, an appropriate sanction, which
       may include an order to pay to the other party or parties the amount of the
       reasonable expenses incurred because of the filing of the document, including
       reasonable attorney fees. The court may not assess punitive damages.

       (F) Sanctions for Frivolous Claims and Defenses. In addition to sanctions under
       this rule, a party pleading a frivolous claim or defense is subject to costs as
       provided in MCR 2.625(A)(2). The court may not assess punitive damages.

MCL 600.2591 further provides:

       (1) Upon motion of any party, if a court finds that a civil action or defense to a
       civil action was frivolous, the court that conducts the civil action shall award to

                                               -10-
       the prevailing party the costs and fees incurred by that party in connection with
       the civil action by assessing the costs and fees against the nonprevailing party and
       their attorney.

       (2) The amount of costs and fees awarded under this section shall include all
       reasonable costs actually incurred by the prevailing party and any costs allowed
       by law or by court rule, including court costs and reasonable attorney fees.

       (3) As used in this section:

       (a) “Frivolous” means that at least 1 of the following conditions is met:

       (i) The party’s primary purpose in initiating the action or asserting the defense
       was to harass, embarrass, or injure the prevailing party.

       (ii) The party had no reasonable basis to believe that the facts underlying that
       party’s legal position were in fact true.

       (iii) The party’s legal position was devoid of arguable legal merit.

“Sanctions for bringing a frivolous action are warranted where the plaintiff, on the basis of a
ruling in another case, has reason to believe that an action against the defendant lacks merit.”
Farmers Ins Exch v Kurzmann, 257 Mich App 412, 423; 668 NW2d 199 (2003).

       In determining reasonable attorney fees, a court must consider: (1) the professional
standing and experience of the lawyer; (2) the skill, time and labor involved; (3) the amount in
question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6)
the nature and length of the professional relationship with the client. John J Fannon Co v
Fannon Products, LLC, 269 Mich App 162, 171-172; 712 NW2d 731 (2005).

        The probate court did not err in finding that plaintiffs’ claim was frivolous. Our analyses
on the two preceding issues demonstrate just how void of merit plaintiffs’ claims were. As to the
amount of sanctions, plaintiffs do not dispute the hourly rate and instead insist that the number of
hours were unreasonable. Specifically, plaintiffs argue that many of the fees were incurred in
2015 and 2016 while the parties awaited the probate court’s decision on defendants’ motion for
summary disposition. However, the probate court explained:

              [T]his court notes that any delay in rendering a decision on the motion for
       summary disposition is attributable to the plaintiffs and plaintiffs’ counsel. The
       long-contested history of the related Parks trust and estate proceedings is well
       outlined in the March 2016 opinion that is currently on appeal.

                                              * * *

               Before this court could rule upon the defendants’ motion for summary
       disposition or plaintiffs’ request for partial summary disposition, the proceeding
       was stayed pending plaintiffs’ application for leave to appeal to the Michigan
       Supreme Court in the estate matter. After the application was denied, plaintiffs

                                                -11-
       filed a motion to compel discovery and for judicial disqualification and other
       relief on August 7, 2015, requesting that Judge Burton disqualify himself from the
       case.

               After a hearing on the motion, the court, on October 30, 2015, denied the
       motion to disqualify. The motion to disqualify was then referred to the State Court
       Administrator’s Office (“SCAO”) for a review of Judge Burton’s denial. The
       matter was assigned to the Chief Judge of the Oakland County Probate Court, the
       Honorable Elizabeth Pezzetti. On December 21, 2015, Judge Pezzetti denied
       plaintiffs’ motion and transferred the proceedings back to the Wayne County
       Probate Court. A hearing on the motion for summary disposition occurred on
       February 23, 2016.

The delay in deciding the substantive motion for summary disposition was brought about
primarily by plaintiff. Therefore, the probate court did not abuse its discretion in determining the
number of hours expended on this case.

                                V. VALUATION OF THE COAT

        Plaintiffs argue that the probate court erred in treating plaintiffs’ petition for valuation as
a sanction and in striking plaintiffs’ jury demand. Plaintiffs further argue that the probate court
erred in refusing to sanction defendants for failing to turn over the coat as previously agreed. We
disagree.

        At the time plaintiffs filed their petition for valuation, plaintiffs also filed a petition for
instructions on “how to proceed” with the valuation petition. Plaintiffs requested the following:

               12.    The court is requested to issue instructions on whether the
       valuation placed on the coat will result in a damages award against the Heirs for
       their breach of contract/fraud and in favor of Steele and the Institute. Steele and
       the Institute believe that an award of damages is appropriate due to the clear
       breach of contract and fraud committed by the Heirs.

               13.    The court is also requested to issue instructions on whether there
       are any other issues for determination in connection with the Valuation Action,
       other than a valuation of the coat.

               14.     The court is also requested to issue instructions on whether the
       Valuation Action will be heard by a jury or by the court. Steele and the Institute
       believe that the valuation should be made by a jury because Steele and the
       Institute timely requested a jury trial in their Valuation Action and paid the jury
       fee. Moreover, Steele and the Institute believe that the Valuation Action can only
       be for the purpose of determining damages for the Heirs’ breach of contract and
       fraud, and the determination of damages is an issue clearly triable to a jury.

        In an opinion dated February 28, 2017, the probate court addressed plaintiffs’ request for
instructions, as well as defendants’ motions for summary disposition and to strike plaintiffs’ jury
demand. The probate court found plaintiffs’ allegations regarding the court’s jurisdiction

                                                 -12-
“without merit.” It rejected plaintiffs’ argument that their claim of appeal from the probate
court’s March 2016 order was subject to an automatic stay and “to the extent that Steel and the
Institute challenge this court’s dismissal of the 2013 action, such a challenge is improper in the
present proceedings.” The probate court added:

               The court first discussed the issue of a setoff in the August 10, 2009
       opinion and found that by failing to locate and deliver the coat, the heirs breached
       ¶ 5 of the settlement agreement. It determined that the proper remedy for the
       failure to comply with the terms of the agreement was a sanction to be determined
       by the court and that award would be set off against the heirs’ share of the estate.
       The court denied Steele and the Institute’s request for damages and clarified that
       the setoff was a sanction as a result of the heirs’ breach of the agreement and not
       an award of damages. There was no discussion of account. Thus, summary
       disposition based on the failure to file an account is not proper. However, under
       MCL 700.3415, the heirs have a right to seek an accounting from the personal
       representative.

                Furthermore, genuine issues of material fact exist as to the value of the
       coat. The heirs contend that Steele and the Institute are required to establish that
       the coat existed. The court disagrees. In 2007, as part of the settlement agreement,
       the heirs represented that they were in possession of the coat and agreed to deliver
       it for inclusion as part of the marketable property. It has already been determined
       that the heirs failed to produce the coat as agreed upon. What remains to be
       determined is the value of the coat. The heirs contend that the coat has no
       independent value while Steele and the Institute assert that it has been appraised
       at $1.35 million. Because genuine issues exist as to the value of the coat,
       summary disposition will be denied and the parties will have an opportunity to
       address the issue at trial. [Emphasis added.]

        The probate court concluded that plaintiffs were not entitled to a jury trial on their
petition:

               MCL 600.857(1) provides as follows:

               If a party to a proceeding in the probate court would have had a right
               before January 1, 1971 to demand a jury to determine a particular issue of
               act in the circuit court upon a de novo appeal from that proceeding to the
               circuit court, that party shall on and after January 1, 1971 have the right to
               demand a jury to determine that issue of fact in the probate court
               proceeding.

               To determine whether the right to a jury trial existed prior to 1971, this
       court must look to the “nature of the action.” Under the nature-of the action
       approach, whether an action is classified as legal or equitable determines if a right
       to a jury exists. This court must “consider not only the nature of the underlying
       claim, but also the relief that the claimant seeks.” If the nature of the controversy
       is equitable, “then it must be heard before a court of equity.”

                                               -13-
                The value that should be assigned to the coat is an equitable matter. In the
       August 10, 2009 opinion, the court, in the exercise of its equitable powers,
       determined that the heirs’ failure to locate and deliver the coat warranted the
       imposition of sanctions, which would be offset against the heirs [sic] share of the
       estate. The petition for valuation and the relief of a setoff are not legal in nature
       but are based in equity. Thus, Steele and the Institute have no right to a trial by
       jury. The motion to strike jury demand will be granted and the request for a jury
       trial shall be stricken. [Emphasis added.]

        The probate court rejected plaintiffs’ continued attempt to assail prior orders and made
the following observation:

               Additionally, to the extent that Steele and the Institute seek to rehash the
       court’s prior decisions, these matters have been adjudicated by the court and will
       not be reconsidered. Moreover, Steele and the Institute appealed the orders of
       August 10, 2009, and January 13, 2010. See Chase v Raymond & Rosa Parks
       Institute for Self-Dev, unpublished per curiam opinion of the Court of Appeals,
       issued April 19, 2011 (Docket Nos. 293897, 293899, 296294, 296295). The Court
       of Appeals affirmed this court’s rulings. Id. However, the Michigan Supreme
       Court reversed the Court of Appeals judgment in lieu of granting the application
       for leave to appeal on the issue of breach of the settlement agreement’s
       confidentiality provision. Chase v Raymond & Rosa Parks Institute for Self-Dev,
       490 Mich 975; 806 NW2d 528 (2011). Although this court was instructed to
       implement paragraph 1 of the settlement agreement, the remaining portions of the
       2009 and 2010 opinions and orders on appeal remained intact, particularly the
       provisions relating to the heirs’ failure to provide the coat and a setoff. Id.; Chase
       v Raymond & Rosa Parks Institute for Self-Dev, ___ Mich ___; 807 NW2d 306
       (2012) (“Despite the concerns of the probate court, that court’s prior rulings
       resolving past disagreements between the court and Elaine Steel, the Institute, and
       their counsel, are undisturbed by this Court’s December 29, 2011 Order, except
       insofar as they are inconsistent with this Court’s Order, and thus pose no obstacle
       to implementing Paragraph 1 of the Settlement Agreement.”).

The probate court summarized its rulings as follows:

                Accordingly, the motion for summary disposition filed by the heirs-at-law
       is DENIED. The petition for valuation filed by Elaine Steele and the Raymond
       and Rosa Parks Institute for Self-Development shall proceed to trial. Steel and the
       Institute’s request for stay is DENIED. The heirs’ motion to strike jury demand is
       GRANTED and the jury demand is STRICKEN. The petition for valuation shall
       proceed to trial before the court. The petition for instructions filed by Steele and
       the Institute is GRANTED. A determination as to the value of the coat will not
       result in damages but will be a sanction due to the heirs’ failure to locate and
       deliver the coat. The only issue to be heard and determined by the court, not a
       jury, at trial is the value of the coat. [Emphasis added.]



                                               -14-
        Plaintiffs were not entitled to a jury trial. Plaintiffs’ claim that they had a jury right stems
from their persistent belief that the breach of contract claim is still alive. “ ‘Actual damages is
also a term of art. Actual damages is a legal, rather than an equitable, remedy, and legal issues
are traditionally tried to a jury.” Anzaldua v Band, 457 Mich 530, 541; 578 NW2d 306 (1998).
Plaintiffs’ fixation on damages runs with their continuing fixation on the already-dismissed
breach of contract claims. Because the coat valuation was related to sanctions and was a matter
of equity, plaintiffs were not entitled to a jury trial. The sole issue for the probate court’s
consideration was the amount of sanctions as a result of defendants’ failure to produce the coat.

        The parties agreed to conduct a trial on written documents only. On March 24, 2017,
plaintiffs submitted its trial brief, which consisted primarily of an appraisal report by Brian
Kathenes of National Appraisal Consultants, L.L.C. The 84-page appraisal concludes that the
coat had a market value of $1,350,000. The appraisal explains that there are generally three
approaches to determine value – the income approach, the comparable sales approach, and the
cost approach. Kathenes believed that the second of the three approaches was the most
appropriate. He explained: “There are many examples of historical clothing, artifacts, and
personal items related to famous people, social reformers, celebrities, and historic events. The
provenance of this coat, along with its documented history and social significance make the
comparable sales approach appropriate.” Some of the comparable items included Jesse Owens’s
1936 Olympic Gold Medal, the Nobel Prize Medal and Nobel Diploma for Francis H.C. Crick,
Marilyn Monroe’s “Happy Birthday, Mr. President” and “Seven Year Itch” dresses, and the U.S.
Hockey Olympic Gold Medal for the 1980 “Miracle on Ice.”

        Defendants offered no appraisal, deciding instead to argue that the coat’s very existence
was only legend and that the marketable property as a whole without the coat had no impact on
the value and, therefore, there could be no setoff. Specifically, defendants pointed to the fact that
paragraph 5(e) of the settlement agreement required the broker to retain the marketable property
intact as a single unit. The marketing agreement likewise required that the marketable property
be sold intact. The marketable property was sold in 2014 as a single collection. Defendants
pointed to a letter that was part of Kathenes’s records from Alan Ettinger of Guernsey Auction
House to defendants’ attorney wherein Ettinger indicated that the coat had no separate, stand-
alone value. Kathenes admitted that he valued the coat as a stand-alone item and not as part of
the marketable property. Defendants maintained that Kathenes failed to use the proper valuation
method, which was the difference between what the marketable property was worth with the coat
from what it was worth without it. Defendants again argued that plaintiffs were improperly
seeking damages instead of providing a basis for awarding sanctions.

        The probate court issued an opinion on July 6, 2017. It first rejected defendants’
argument that a finding that the coat did not increase the value of the marketable property was
dispositive of the issue:

        [A]s explained in this court’s prior opinion and orders, a determination as to the
        value of the coat is to be made in order to establish the amount of the sanctions to
        be imposed against the heirs for their breach of the settlement agreement by
        failing to locate and deliver the coat. This is the equitable remedy that was
        fashioned by the court. During the negotiations of the agreement, the heirs
        represented that they were in possession of the coat and agreed to deliver it for

                                                 -15-
       inclusion as part of the marketable property. They are now barred from claiming
       mistake or inadvertence for their failure to deliver the coat in accordance with the
       agreement. The value of the coat in this valuation proceeding is independent of
       the value of the entire archive of Mrs. Parks’ marketable property. Petitioners
       Steele and the Institute now have the opportunity to present arguments and proofs
       to establish the value of the coat in order to determine the amount of the sanctions
       to be offset against the heirs’ share of the estate.

       Over the next 10 pages, the probate court described plaintiffs’ appraisal in great detail.
The probate court ultimately concluded that it could not determine the value of the coat based on
the appraisal:

              More important than [the] International Association’s definition of
       comparative sales approach, is an explanation of the basic steps for this approach.
       They are as follows:

              1) Collecting and analyzing data,

              2) Selecting appropriate units of comparison,

              3) Making reasonable adjustments based on the market, and

              4) Applying the data to the subject of appraisal.

               In the appraisal offered by Steele and the Institute, data on purportedly
       comparable items were provided. The appraiser presented background
       information and the same prices of the items. Reasons as to why a listed item was
       not considered to be comparable, i.e. spurious provenances and questions of
       authenticity, were also stated. Otherwise, no basic steps demonstrating the critical
       four steps referenced in the property assessment valuation were explained in the
       appraisal. No values were presented showing the adjustments for the differences
       between the 54 listed comparables and the Parks coat. The only time it appears an
       adjustment was considered was in the analysis of the Montgomery bus sale for
       $427,919 in 2001.

               Without adjustments, the court is left to guess as to how the appraiser
       arrived at a value of $1,350,000. It is particularly difficult to follow this estimate
       of value in light of the range of sales included in the comparables. For example,
       the first nine comparables identified as “Comparable Sales Data” have a sales
       range of $4.6 million to $11,250. While the items listed in the “Parallel Markets –
       Pop Culture, Motion Picture History” section, which include 27 Oscars and 3 JFK
       relate[d] items, have a sale range of $861,542 to $1. Also included as parallel
       market data was a DNA letter that sold for $6,059,750 and a George Washington
       wine cooler that sold for $782,500. The balance of comparables include 2 sports
       artifacts and 10 movie costumes with a sales range of $5.5 million, which had
       been previously cited as $4.6 million, to $330,000.



                                               -16-
               Each of the aforementioned sales categories provide no assistance in
       understanding how the appraiser arrived at a value of the coat. Consequently, the
       court is unable to make a determination as to the value of the coat. As the parties
       have chosen to rely on filed materials – including the petition, response, reply to
       the response, briefs, attachments, and exhibits while waiving an evidentiary
       hearing – the court concludes that any determination of value based on these
       submissions would be pure speculation. The court declines to “guesstimate” as the
       evidence does not support a definitive value. Therefore, the relief sought by
       Petitioners Steele and the Institute must be denied.

              Accordingly, Steele and the Institute’s petition for valuation is DENIED.
       Sanctions will not be imposed against the heirs.

        Importantly, plaintiffs do not take issue with any of the probate court’s findings. Instead,
plaintiffs argue that their evidence was unassailable. However, the mere fact that defendants
failed to offer their own appraisal is not dispositive. Plaintiffs had the burden of establishing the
coat’s worth. “The burden of proof, which may also be generally referred to as a party’s
evidentiary burden, refers both to a party’s burden to provide actual evidence of alleged facts and
a party’s burden to persuade the trier of fact as to the veracity of those facts.” People v
Hartwick, 498 Mich 192, 216; 870 NW2d 37 (2015). It is clear that the probate court went to
great lengths to evaluate plaintiffs’ appraisal and simply concluded that it was unable to accept
the appraisal as a true estimate of the coat’s worth for purposes of assessing sanctions for
defendants’ failure to turn over the coat.

       Affirmed. Having prevailed in full, defendants may tax costs. MCR 7.219.

                                                              /s/ Kirsten Frank Kelly
                                                              /s/ William B. Murphy
                                                              /s/ Michael J. Riordan




                                                -17-
