FALKNER
v.
FALKNER
Docket No. 19560.
Michigan Court of Appeals.
Decided February 12, 1975.*559 Wise, Sayen & O'Connor, for plaintiff.
Spelman, Taglia, Meek & Lagoni, for defendant.
Before: T.M. BURNS, P.J., and QUINN and O'HARA,[*] JJ.
O'HARA, J.
The first and most important thing to be understood and emphasized in this case is that it is not the traditional accounting case between joint tenants or tenants in common.
The threshhold issue of any right of either joint tenant to an accounting was not raised in the court below.[1] It is not raised, briefed or argued in this case.
The action began with plaintiff's complaint alleging malicious destruction of six acres of growing strawberry plants on a portion of the jointly-owned land. The multiple count complaint also seeks double or triple damages pursuant to statutes claimed by plaintiff to apply. The actual damage claimed is $16,000. The ad damnum clause is for $48,000.
*560 The answer denies the allegation of malicious damage by plowing up the strawberries. It raises the affirmative defense that defendant can't be guilty of an act of trespass on land of which he has co-equal rights with the plaintiff.
He asserts further that by reason of the indivisible nature of the estate he could not be guilty of waste or conversion as alleged. Additionally he counterclaims contending that the land in question was not put to its optimum financial use, that he was excluded from his rightful co-equal management and control and deprived of his rightful fair rental value of the portion unlawfully used by plaintiff.
All of the foregoing is denied by plaintiff in his reply to the answer and his answer to the affirmative defenses.
The trial judge, prior to the trial proper, denied plaintiff's petition for a preliminary injunction from harvesting any of the strawberries in growth on the 18 acres of the involved parcel. At the same time he entered the following order. We quote:
"IT IS ORDERED AND ADJUDGED that plaintiff's motion for preliminary injunction be, and the same hereby is, denied.
"HOWEVER, IT IS FURTHER ORDERED AND ADJUDGED that both plaintiff and defendant are entitled to harvest the approximate eighteen (18) acres of strawberries in the following manner:
"First, the defendant shall forthwith divide said eighteen (18) acres into two (2) parcels; Second, the plaintiff shall then have his choice of which one of the two (2) parcels he desires to harvest and once this selection is made plaintiff shall have the sole right to harvest the strawberries growing on the parcel he so chooses; Third, defendant shall have the sole right to harvest the strawberries growing on the remaining parcel; Finally, each party shall keep a full and complete accounting of all monies received and disbursed in connection with the harvesting of the strawberries on their respective *561 parcels and each shall submit said accounting to the other party and to the court."
The parties complied and each filed his accounting as ordered. Plaintiff filed written objections to defendant's accounting. Defendant filed a reply thereto. Neither party sought an evidentiary hearing in connection with the accounting in the court below. Hence the right of neither one thereto is before us on appeal.
The trial judge thereupon proceeded to adjudication. He made a specific finding of fact that the alleged malicious destruction of the six acres of growing plants was not done by the defendant. The finding is not clearly erroneous and we are not free to disturb it. Jarosz v Caesar Realty, Inc, 53 Mich. App. 402; 220 NW2d 191 (1974). We have studied the opinion of the learned and experienced trial judge with extreme care. With his holding and his opinion we have no disagreement. The difficulty we face is that either by inadvertence or mathematical miscalculation, he did not do that which he expressly said he was going to do.
We have reworked the figures he used and applied his ratio decidendi thereto. We come up with the following anomalous result. What the trial judge did may be thus summarized:
Costs Plaintiff Defendant
Preparatory costs $ 7,757.89 $ 0
Harvesting & incidental
costs after
5/21/73 11,751.89 8,785.95
__________ __________
Total costs $19,509.78 $ 8,785.95
Receipts
Income from harvest
on each 9-acre plot $22,724.10 $11,958.25
__________ __________
Result $ 3,214.32 $ 3,172.30[2]
Net profit Net profit
*562 In calculating expenses versus receipts the judge allowed plaintiff to subtract only one half of his preparatory expenses, but at the same time defendant was required to pay nothing to plaintiff for these expenses.[3]
If we read the court's opinion in chief and his brief opinion on the motion for reconsideration we think the following computation is mathematically mandated.
PREPARATORY COSTS $15,515.79 before the court order of May 21, 1973, should have been divided between the parties equally. Therefore:
Costs Plaintiff Defendant
Preparatory expenses $ 7,757.89 $ 7,757.89
Harvesting & incidental
costs after
5/21/73 11,751.89 8,785.95
__________ __________
Total costs $19,509.78 $16,543.84
Receipts
Income from harvest
on each 9-acre plot $22,724.10 $11,958.25
__________ __________
Result $ 3,214.32 $ 4,585.59
Net profit Net loss
*563 We regret the necessity of remand. We suspect the trial judge may be somewhat disenchanted with the problems generated by the litigious brothers Falkner who were before him in a previous full blown trial in 1968. That case also ended up in this Court in 1970. See Falkner v Falkner, 24 Mich. App. 633; 180 NW2d 491 (1970).
We think the error, miscalculation or inadvertence, whatever it may be, is better reconsidered in the trial court with its facilities for taking further testimony if deemed necessary or possibly a revised accounting.
To the extent of his finding that defendant was not guilty of the claimed malicious destruction of the growing plants the trial judge is affirmed. As to the accounting aspect of the case the order denying the reconsideration is vacated and the case remanded for further proceedings. In this respect plaintiff has prevailed. Neither party having prevailed in full we award no costs.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] On the question of whether and under what circumstances a cotenant must account for benefits derived from commonly held lands, see generally: Everts v Beach, 31 Mich. 136; 18 AR 169 (1875); Wilmarth v Palmer, 34 Mich. 347 (1876); Moreland v Strong, 115 Mich. 211; 73 N.W. 140 (1897); Fenton v Miller, 116 Mich. 45; 74 N.W. 384 (1898); Owings v Owings, 150 Mich. 609; 114 N.W. 393 (1908); Nott v Gundick, 212 Mich. 223; 180 N.W. 376 (1920); Zwergel v Zwergel, 224 Mich. 31; 194 N.W. 505 (1923); Frenzel v Hayes, 242 Mich. 631; 219 N.W. 740 (1928); Forler v Williams, 257 Mich. 686; 241 N.W. 823 (1932); Walton v Walton, 287 Mich. 557; 283 N.W. 687 (1939); Sullivan v Sullivan, 300 Mich. 640; 2 NW2d 799 (1942); MCLA 554.138; MSA 26.1108. See also: 27 A.L.R. 184; 51 ALR2d 388; 48 CJS, Joint Tenancy, § 9, p 932; 20 Am Jur 2d, Cotenancy and Joint Ownership, §§ 41-42, 46, pp 132-134, 137-138.
[2] We also note a slight discrepancy between the defendant's profit as stated in the defendant's own accounting and as found in the trial court's opinion. Defendant states that he derived a net profit of $3,172.30 from the crop. The trial judge noted defendant's profit as being some $3,172.20.
[3] The generally accepted rule seems to be that where a cotenant must account for rents, profits or the value of occupancy and use, he is entitled to a credit with respect to reasonable expenditures incurred incident to protection or maintenance of the property. See 20 Am Jur 2d, Cotenancy and Joint Ownership, § 52, p 142, citing inter alia Fenton v Miller, 116 Mich. 45; 74 N.W. 384 (1898); Walton v Walton, 287 Mich. 557; 283 N.W. 687 (1939). See also 51 A.L.R. 2d 388, 464, and Moreland v Strong, 115 Mich. 211; 73 N.W. 140 (1897).