Riem v. Howe (In re Estate of Howe)

1

In re ESTATE OF BEVERLY M. HOWE.

KYLE RIEM, Personal Representative of the ESTATE OF BEVERLY M. HOWE, Appellee, v. THOMAS HOWE, Appellant, and STEVEN HOWE, Other Party. THOMAS HOWE, Plaintiff-Appellant, v. ESTATE OF BEVERLY MAY HOWE, Defendant-Appellee, and STEVEN HOWE, Other Party. In re BEVERLY HOWE FAMILY TRUST. GEORGE RIZIK, Trustee of the BEVERLY HOWE FAMILY TRUST, Appellee, v. THOMAS HOWE, Appellant, and KRAIG SIPPELL and STEVEN E. HOWE, Other Parties. THOMAS HOWE, Plaintiff-Appellant, v. ESTATE OF BEVERLY MAY HOWE, Defendant-Appellee, and STEVEN HOWE, Other Party.

Nos. 360090, 360890, 360578, 360360, 360891, 361379

Court of Appeals of Michigan

March 9, 2023

UNPUBLISHED

Genesee Probate Court LC Nos. 21-216835-DE, 21-116388-CZ 18-210539-TV

Before: GLEICHER, C.J., AND BOONSTRA AND CAMERON, JJ.

PER CURIAM

In these consolidated appeals,^[1] appellant Thomas Howe appeals as of right several orders entered in these related cases involving the estate of Beverly May Howe (Docket Nos. 360090 and 360890), Thomas's civil action against Beverly Howe's estate (Docket Nos. 360578, 360891, and 361379) and the Beverly Howe Family Trust (Docket No. 360360). We remand for further proceedings regarding Thomas's objections to Personal Representative Kyle Riem's fees in Docket No. 360090, and remand for de novo review by the chief judge of Thomas's motion for disqualification in Docket No. 360890, but affirm in all other respects.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

Beverly Howe died in March 2021, survived by her two sons, Steven Howe and Thomas Howe. In her final years, Beverly suffered from dementia. Because Thomas and Steven disagreed on nearly every aspect of caring for her and managing her assets, the probate court appointed an independent guardian and an independent conservator to oversee her care and property. After Beverly's death, the court appointed Kyle Riem as personal representative of her estate. George Rizik served as trustee of the Beverly Howe Family Trust.

The case involving the Beverly Howe Family Trust, and related cases involving the guardianship of Beverly Howe, the Beverly M. Howe Revocable Trust, and the Wallace Howe Family Trust have been before this Court several times previously.^[2] The instant appeals involve Beverly's Family Trust, her decedent's estate, and an action filed by Thomas against Beverly's estate.

In a prior appeal involving the Beverly Howe Family Trust, this Court remanded the case to the probate court for "factual findings regarding Thomas's specific challenges to [Trustee] Rizik's fees and charges sufficient to facilitate appellate review." In re Beverly Howe Family Trust, unpublished per curiam opinion of the Court of Appeals, issued December 2, 2021 (Docket No. 355094), p 4. The probate court's decision on remand is the subject of Thomas's appeal in Docket No. 360360.

Below, Thomas claimed-and continues to claim-that a potential medical-malpractice claim against Beverly's healthcare providers is a potentially substantial asset of the estate. Steven Howe disagreed. Riem, the estate's personal representative, cooperated with Thomas's requests for an autopsy and production of Beverly's medical records. Riem also consulted Beverly's long-time family physician, Dr. Saed J. Sahouri, M.D., who reviewed the autopsy report and medical records, but found no cause to further investigate a claim for medical malpractice. Because Thomas was adamant that a medical-malpractice claim should still be investigated, the probate court ordered Thomas to pay $5,000 toward an investigation and appointed Michael Behm, a malpractice attorney, to investigate a potential malpractice claim. The order provided, however, that Thomas was to be reimbursed from any recovery if a claim was found to be meritorious.

Riem petitioned to resign as personal representative, and Thomas petitioned for his own appointment as personal representative. The probate court denied both petitions. Because most of Beverly's assets were held by her trusts, the probate estate consisted mostly of a small bank account and some checks, totaling approximately $5,800, and the contents of a safe-deposit box. Beverly's will recommended a procedure for dividing items of personal property between Thomas and Steven if they could not agree. But because the probate court became concerned that the estate did not have sufficient liquid assets to pay Riem's fees, it authorized Riem to sell items in Beverly's safe-deposit box, but provided that Thomas or Steven would have the first opportunity to purchase any item that was sold. Thomas challenges these decisions in Docket No. 360090.

Thomas moved to disqualify the Probate Court Judge, Jennie E. Barkey. The judge denied the motion, but did not refer the matter to the chief judge for de novo review. Thomas also moved for a stay of all proceedings. The probate court partially granted the stay, applying it only toward investigation of the malpractice action. These decisions are the subject of Thomas's issues in Docket No. 360890.

Thomas also filed an action against the estate in circuit court, seeking recovery of $31,173.19 for attendant care and household services he provided to Beverly before her death. The circuit court transferred the case to the probate court and ordered that it be assigned to Judge Barkey, who had been assigned to the probate case. Riem, in his capacity as personal representative, moved for imposition of a security bond against respondent for litigation costs. The probate court granted the motion. Thomas challenges these decisions in Docket Nos. 360578, 360891, and 361379.

II. DOCKET NO. 360090

A. PERSONAL REPRESENTATIVE'S PETITION TO RESIGN AND THOMAS'S PETITION FOR APPOINTMENT

Thomas argues that the probate court erred by denying Riem's petition to resign as personal representative and by denying Thomas's petition for appointment as successor personal representative. We disagree.

1. PRESERVATION AND STANDARD OF REVIEW

A probate court's decision regarding the appointment or removal of a personal representative is reviewed for an abuse of discretion. In re Conservatorship of Murray, 336 Mich.App. 234, 240; 970 N.W.2d 372 (2021); In re Kramek Estate, 268 Mich.App. 565, 575; 710 N.W.2d 753 (2005). A court abuses its discretion when it renders a decision that falls outside the range of principled outcomes. Bitterman v Village of Oakley, 309 Mich.App. 53, 61; 868 N.W.2d 642 (2015). The court's factual findings are reviewed for clear error. In re Lundy Estate, 291 Mich.App. 347, 352; 804 N.W.2d 773 (2011). A factual finding is clearly erroneous if this Court is left with a definite and firm conviction that the court made a mistake, even if there is evidence to support the court's finding. In re Conservatorship of Brody, 321 Mich.App. 332, 336; 909 N.W.2d 849 (2017).

Issues involving the application and interpretation of a statute are reviewed de novo. In re Estate of Huntington, 339 Mich.App. 8, 16; 981 N.W.2d 72 (2021) (citation omitted).

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. The first step in determining legislative intent is to review the language of the statute. If the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed, and judicial construction is neither required nor permissible. However, when reasonable minds may differ with regard to the meaning of a statute, the courts must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. [In re Estate of Sprenkle-Hill, 265 Mich.App. 254, 257-258; 703 N.W.2d 191 (2005) (quotation marks, citations, and alterations omitted).]

Thomas argues that the probate court erroneously took judicial notice of the related files in Beverly's guardianship and conservatorship, and the other trusts when it found that he was not suited to serve as personal representative of Beverly's estate. But because Thomas did not make a timely^[3] objection when the court announced its intent to take judicial notice of these other files, this issue is unpreserved. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227-228; 964 N.W.2d 809 (2020); MRE 103(a)(1). A trial court's decision whether to take judicial notice of facts not of record is generally reviewed for an abuse of discretion, Lenawee Co v Wagley, 301 Mich.App. 134, 149; 836 N.W.2d 193 (2013), but because this issue is unpreserved, it is reviewed for plain error affecting Thomas's substantial rights, Demski v Petlick, 309 Mich.App. 404, 426-427; 873 N.W.2d 596 (2015). "Plain error affects a litigant's substantial rights if the party is prejudiced by the error, meaning that the error affected the outcome of the lower court proceedings." Johnson v Mich. Minority Purchasing Council, ___ Mich.App. ___, ___; ___ N.W.2d ___ (2022) (Docket No. 357979; slip op at 11.

2. LAW AND ANALYSIS

MCL 700.3610 specifies a procedure for acceptance of a personal representative's resignation. This statute states, in part:

After giving at least 14 days' written notice to known interested persons, a personal representative may resign by filing a written statement of resignation with the register. If no one applies or petitions for appointment of a successor personal representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and is effective only upon the appointment and qualification of a successor personal representative and delivery of the estate property to the successor personal representative. [MCL 700.3610(3).]

Although Thomas petitioned to be appointed successor personal representative of...