If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re Conservatorship and Guardianship of
DOROTHY REDD.
GARY REDD, UNPUBLISHED
January 17, 2019
Appellant,
v No. 341750
Oakland Probate Court
JENNIFER CARNEY and NICOLE LEGARDY, LC Nos. 2014-357310-CA;
Co-Guardians of DOROTHY REDD, Deceased, 2014-356995-GA
Appellees.
Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
This Court previously affirmed the probate court’s August 11, 2016 removal of Gary
Redd as his mother, Dorothy Redd’s, co-guardian. In re Guardianship of Redd, 321 Mich App
398; 909 NW2d 289 (2017). Gary now appeals the probate court’s rejection of various accounts
he presented as Dorothy’s co-conservator and an order removing his name from the deed to
Dorothy’s home, as well as other rulings made by the probate court. We affirm.
I. BACKGROUND
As noted in Redd, 321 Mich App at 402-403, the probate court removed Gary as
Dorothy’s co-guardian because he was blocking then 93-year-old Dorothy’s interactions with
other family members. After the court’s order, Gary remained as Dorothy’s co-conservator and
exerted control over Dorothy’s real estate as Dorothy had previously signed a quitclaim deed
naming Gary as a joint tenant with full rights of survivorship. Gary used this interest to evict
other relatives from Dorothy’s home. He then made repairs and secured paying tenants.
As Dorothy’s co-conservator, Gary was required to file accounts explaining the use of
Dorothy’s assets. Throughout the proceedings, Gary did not timely file these accounts, leading
to court intervention. Early on, the court accepted Gary’s tardy accounts and permitted his
requests for costs and fees. After learning of Gary’s interference with Dorothy’s family
relationships, however, the court scrutinized his later accounts more closely and found them
overly generic, lacking in supporting documentation, and mathematically inaccurate. The court
therefore denied Gary’s request for fees for his services. The court decided to end Dorothy’s
conservatorship on October 28, 2016. The court also ordered Gary removed as the beneficiary of
a life insurance policy intended to cover Dorothy’s funeral expenses, an order to which Gary
agreed. The court also rejected Gary’s explanation that he had loaned his mother money to stay
afloat and repaid himself by using Dorothy’s credit at Art Van Furniture to purchase furnishings
for his own home. The court ordered Gary to remove the furniture to the home of the relative
with whom Dorothy was then living.
Gary appealed the probate court’s various orders. While this appeal was pending,
Dorothy Redd passed away.
II. ANALYSIS
As this Court explained in Redd, 321 Mich App at 403-404 (cleaned up) 1:
We review the probate court’s dispositional rulings for an abuse of
discretion. A probate court abuses its discretion when it chooses an outcome
outside the range of reasonable and principled outcomes. We review the probate
court’s findings of fact for clear error. A factual finding is clearly erroneous
when this Court is left with a definite and firm conviction that a mistake has been
made. We review de novo any statutory or constitutional interpretation by the
probate court.
The probate court also granted equitable relief in this matter. We review de novo the
grant of equitable relief, keeping in mind that “the propriety of affording equitable relief[] rests
in the sound discretion of the court[] to be exercised according to the circumstances and
exigencies of each particular case.” Tkachik v Mandeville, 487 Mich 38, 44-45; 790 NW2d 260
(2010) (cleaned up).
We first address Gary’s challenge to the probate court’s order setting aside the 2012
quitclaim deed naming him as a “joint tenant[] with full rights of survivorship” in Dorothy’s
home. During these proceedings, several petitions seeking to set aside this deed were filed. At
an evidentiary hearing, Dorothy testified that she executed the deed because Gary was
trustworthy and honest. She explained that he had performed various repairs to the home so that
it could be rented. Dorothy further explained that her intent was to have Gary “split” the home
among all of her children when she passed away. She expressed this intent to Gary before
1
This opinion uses the new parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as
brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).
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executing the deed, and trusted that he would follow her wishes. However, it became apparent
during these proceedings that Gary intended to keep the home for himself.
The probate court cited three grounds to set aside the quitclaim deed: (1) Dorothy
mistakenly believed that Gary would follow her wishes after her death and share the home with
all of her children; (2) the equitable remedy of a constructive trust, and (3) Gary’s breach of
fiduciary duty by accepting the quitclaim deed while he served as Dorothy’s power of attorney.
We note that in his appellate brief, Gary conflates unrelated parts of the probate court’s ruling,
asserting that the court voided the deed under various provisions of MCL 700.5421, relating to
improper real estate transactions by conservators. The court actually cited this statute in relation
to its order denying Gary’s accounts and requests for conservator fees. As Gary “fails to dispute
the [actual] basis of the [probate] court’s ruling, this Court need not even consider” his appellate
challenge. Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145
(2004) (cleaned up). In any event, while we question some of the probate court’s cited grounds,
the court properly imposed a constructive trust and ordered Gary to sell Dorothy’s home.
A constructive trust “is the formula through which the conscience of equity finds
expression. When property has been acquired in such circumstances that the holder of the legal
title may not, in good conscience, retain the beneficial interest, equity converts him into a
trustee.” Kent v Klein, 352 Mich 652, 656; 91 NW2d 11 (1958) (cleaned up). A constructive
trust “arises by operation of law.” Id. “It is enough, to compel surrender, that one feed and grow
fat on that which in good conscience belongs to another, that he enjoy a windfall resulting in his
unjust enrichment, that he reap a profit in a situation where honor itself furnishes rich reward,
where profit, the mainspring of the market place, is both foreign and inimical to the trust
reposed.” Id. at 657. A constructive trust may be imposed whenever “the circumstances under
which property was acquired make it inequitable that it should be retained by him who holds the
legal title. Constructive trusts have been said to arise through the application of the doctrine of
equitable estoppel, or under the broad doctrine that equity regards and treats as done what in
good conscience ought to be done.” Id. at 657-658 (cleaned up).
The probate court determined that a constructive trust was necessary to ensure that
Dorothy’s intentions were met. Under the trust, Gary was deemed to hold the property for the
benefit of not only himself, but also his siblings. As the record was clear that Gary would not
honor that trust, the court ordered that the quitclaim deed be set aside and ordered the sale of
Dorothy’s real estate and the division of the proceeds among Dorothy’s children upon her
passing. “When the remedial device of the constructive trust is employed, chancery orders
whatever conveyance will remedy the wrong suffered, whether back to the transferor, or to some
intended third person.” Id. at 658. The probate court’s orders would adequately protect
Dorothy’s intentions and the interests of her heirs, while preventing Gary from taking a windfall
that was not planned by his mother. Accordingly, we affirm the court’s order in this regard.
Gary’s statement of the question presented purports to challenge three other decisions
made by the probate court: (1) refusing to allow his accounts, (2) removing him as a beneficiary
of Dorothy’s life insurance policy, and (3) ordering that furniture be removed from his home and
returned to Dorothy at Nichole Legardy’s home. After fully examining Gary’s arguments, we
find no errors warranting relief.
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The probate court disallowed Gary’s accounts for a wide variety of reasons. With respect
to Gary’s accounting of Dorothy’s income and expenses, the court cited the lack of supporting
documentation. Gary simply argues that the court should have credited his testimony as
supporting the entries in the account. But credibility is a matter better left to the finder of fact.
Redd, 321 Mich App at 412. And there is indeed a lack of supporting documentation for many
of Gary’s entries in the accounts. There are also a number of discrepancies, omissions, and other
account errors. Gary even testified that he was unsure of the accuracy of various entries, or of
what expenses were included in certain broad categories stated in the accounts. On this record,
we cannot find error in the probate court’s decision.2
Moreover, Gary waived any challenge to his removal as a beneficiary of Dorothy’s life
insurance policy. “A party may not claim as error on appeal an issue that the party deemed
proper in the trial court because doing so would permit the party to harbor error as an appellate
parachute.” Hoffenblum v Hoffenblum, 308 Mich App 102, 117; 863 NW2d 352 (2014) (cleaned
up). Gary repeatedly indicated in the probate court that he no problem with changing the
beneficiary of the policy to Dorothy, waiving any claim of error.
With regard to the furniture bought using Dorothy’s Art Van credit account after she
moved into Gary’s home, the probate court explained that there was no dispute that Dorothy’s
account was used to purchase the furniture. The only question was whether Gary repaid Dorothy
for the purchase. The court found that “insufficient evidence ha[d] been presented to show that”
Gary moved funds to cover the purchase of the furniture and therefore ordered that he place the
furniture in Dorothy’s possession. Again, Gary simply contends that the court should have found
him credible. We may not interfere with the probate court’s judgment in that regard. Redd, 321
Mich App at 412.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien
2
In any event, it appears that Gary’s primary concern is whether he will be able to recoup from
Dorothy’s estate the “loans” he allegedly made for home repairs. The probate court specifically
left this issue open, allowing Gary to prove his expenses and make a claim against the sale
proceeds.
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