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
CINDY SCHAAF, COLLEEN M. FRYER, and UNPUBLISHED
GWEN MASON, August 6, 2019
Plaintiffs/Counterdefendants-
Appellees,
V No. 343630
Antrim Circuit Court
CHARLENE FORBES, also known as ANGIE LC No. 2016-009008-CH
FORBES,
Defendant/Counterplaintiff-
Appellant.
Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.
PER CURIAM.
In this dispute among co-owners of real property, defendant appeals as of right the circuit
court’s orders voiding certain purported conveyances, ordering that the property be sold intact in
lieu of partitioning it, and awarding plaintiffs contribution relating to the costs associated with
certain earlier litigation connected with the subject property. We reverse in part, affirm in part,
vacate in part, and remand to the circuit court for further proceedings consistent with this
opinion, including consideration of whether, in light of this holding, the circuit court has subject
matter jurisdiction to hear this case.1
1
In her reply brief on appeal, defendant challenged the jurisdiction of the circuit court to hear
and decide this case, on the basis of MCL 700.1302(b)(vi)’s grant of “exclusive legal and
equitable jurisdiction” to the probate court over “[a] proceeding that concerns the . . . distribution
. . . of a trust; or the declaration of rights that involve a trust, trustee, or trust beneficiary,”
including to “determine relative to a trustee the existence or nonexistence of an immunity,
power, privilege, duty, or right.” Although a party may not normally raise a new issue in a reply
brief, MCR 7.212(G), “a challenge to subject-matter jurisdiction may be raised at any time.”
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I. FACTS
Mae Fitzpatrick and Leo Bussa, mother and son, jointly owned property on the west
shoreline of Torch Lake, located in Milton Township, Michigan, and the associated littoral
rights. In the 1980s and 1990s, a portion of the waterfront property was divided into seven
separate parcels for residential development. Access to the seven lots was through the subject
parcel by an easement on a private road, Bussa Lane. After the division, the remaining
Bussa/Fitzpatrick property was an 80-acre northern parcel, which was sold in 2015, and a 60-
acre southern parcel. Bussa Lane provided the only means of access to the latter parcel as well.
Fitzpatrick died in 2004, leaving Bussa as the trustee of the Fitzpatrick Trust. Bussa
endeavored to restructure ownership of the subject 60-acre parcel by executing five conveyances.
First, he, as trustee of the Bussa Trust, conveyed to himself, as an individual, the trust’s half
interest. He then conveyed that interest to himself, defendant, and plaintiffs Schaaf and Fryer,
“as Joint Tenants with Rights of Survivorship,” while retaining his own enhanced life estate.2
This left the Fitzpatrick Trust retaining its half interest in the subject parcel as a tenant in
common, and the other half, formerly that of the Bussa Trust, shared by Bussa personally, along
with defendant and plaintiffs Schaaf and Fryer, as joint tenants with rights of survivorship.
Bussa then, as trustee of the Fitzpatrick Trust, simultaneously conveyed half of the latter
trust’s interest to himself as trustee of the Fitzpatrick Trust, and to plaintiff Mason, “as Joint
Tenants with Rights of Survivorship,” while retaining his own personal enhanced life estate, and
the other half of that interest to himself, again as trustee of the Fitzpatrick Trust, and to
defendant, and plaintiffs Schaaf and Fryer, “as Joint Tenants with Rights of Survivorship,” while
again retaining his own enhanced life estate.
Shortly before he died, Bussa commenced litigation relating to a proposed subdivision of
the parcel and use of the Bussa Lane easement. The owners of the seven adjacent parcels
objected to any increased burden on that easement, and they contested the litigation. Upon
Bussa’s death, the instant parties were substituted as plaintiffs in the case, who continued the
litigation. That case ended in a ruling that acknowledged that the 60-acre parcel had the right to
use the easement, but prohibited the further burdening of the easement by allowing additional
owners or newly created parcels to use it.
Plaintiff Mason, as successor trustee of the Fitzpatrick Trust, drew up and filed deeds
confirming the transfers from Bussa to the remaindermen. Plaintiffs contested the validity of the
conveyances that purport to have the Fitzpatrick Trust as a joint tenant with rights of
survivorship. The circuit court agreed that “a Trust cannot hold Property as a joint tenant with
rights of survivorship,” and thus that the Fitzpatrick Trust “had no authority to convey the
Adams v Adams, 276 Mich App 704, 708-709; 742 NW2d 399 (2007). However, we conclude
that it is appropriate to permit the circuit court to decide this issue in the first instance.
2
An enhanced life estate is “a life estate reserved in the grantor and enhanced by the grantor’s
reserved power to convey.” Frank, Ladybird Deeds, Mich BJ 30, 30 (June, 2016).
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Property as joint tenants with rights of survivorship.” The court voided the attendant
conveyances, which left the interests in the Fitzpatrick Trust’s half of the subject parcel to pass
in accord with the terms of the trust itself. The circuit court recognized the resulting interests in
the subject property as follows:
Gwen Mason (Plaintiff) An undivided one-half interest in a one-half
undivided interest in the entire Parcel as a tenant
in common with the other parties;
Cindy Schaaf (Plaintiff) An undivided 162/3 percent interest in a one-half
undivided interest in the entire Parcel as a tenant
in common, and
An undivided one-third interest in a one-half
undivided interest in the entire Parcel as a joint
tenant with right of survivorship as to the other
interests in that one-half;
Colleen Fryer (Plaintiff) An undivided 162/3 percent interest in a one-half
undivided interest in the entire Parcel as a tenant
in common, and
An undivided one-third interest in a one-half
undivided interest in the entire Parcel as a joint
tenant with rights of survivorship as to the other
interests in that one-half;
Charlene Forbes (Defendant) An undivided 162/3 percent interest in a one-half
undivided interest in the entire Parcel as a tenant
in common, and
An undivided one-third interest in a one-half
undivided interest in the entire Parcel as a joint
tenant with rights of survivorship as to the other
interests in that one-half.
The court summarized the ownership situation as “an undivided one-half of the Parcel . . .
held by the Parties as tenants in common” and “[t]he other undivided half . . . owned by Plaintiff
Schaaf, Plaintiff Fryer and Defendant Forbes as joint tenants with full rights of survivorship.”
The parties do not dispute that the circuit court correctly identified the interests of the parties if
indeed Bussa’s and Mason’s conveyances of the Fitzpatrick Trust’s real property are set aside.
The circuit court concluded that given the existence of the survivorship rights resulting
from the valid conveyances of the real property from the Bussa Trust, and the subject parcel’s
reliance on an easement for access to and from the nearest public road, which easement could not
be further burdened, “partition in kind would result in undue prejudice to the Plaintiffs and an
equitable physical division of the Parcel cannot be achieved.” Accordingly, the court ordered
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that the property be sold intact.
The circuit court further held that the parties, “[a]s cotenants and beneficiaries of Leo
Bussa,” were “jointly and equally responsible for the costs and attorney fees” associated with the
earlier litigation concerning the easement, and also “for the real estate taxes and expenses
associated with maintenance of the Property.” The court set forth detailed findings and
calculations, and concluded that plaintiffs were “entitled to $30,000.86 of Defendant’s share
from the sales proceeds of the Property.” This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo questions of law, Merkur Steel Supply Inc v City of Detroit,
261 Mich App 116, 124; 680 NW2d 485 (2004), including matters of statutory interpretation,
Bank v Michigan Ed Ass’n-NEA, 315 Mich App 496, 499; 892 NW2d 1 (2016).
III. JOINT TENANCY WITH RIGHTS OF SURVIVORSHIP HELD BY A TRUST
The circuit court held, without reference to any legal authority, that the conveyances from
the Fitzpatrick Trust failed by operation of law. On appeal, plaintiffs argue, without citation to
any legal authority, that the circuit court correctly decided this issue. We disagree.
Plaintiffs’ position finds some support in the common law, where corporations and
sovereigns could not hold title as a joint tenant because the “king and corporation can never die.”
2 Blackstone, Commentaries on the Laws of England, p *184. Presumably, the lack of
reciprocity in survivorship precluded these entities from holding and conveying land in this
manner. See 6A Fletcher, Cyclopedia of the Law of Corporations § 2816; 2 Tiffany Real Prop
§423 (3d ed); 10 McQuillin Mun Corp §28:19 (3d ed). Notably, the common law rule was
limited to corporations and sovereigns, and was not explicitly extended to trusts, which do not
enjoy a perpetual existence because of the rule against perpetuities.3 However, to the extent that
the common law does support plaintiffs’ position, it has been abrogated by statute.
MCL 554.44 states that, “[a]ll grants and devises of lands, made to 2 or more persons,
except as provided in the following section, shall be construed to create estates in common, and
not in joint tenancy, unless expressly declared to be in joint tenancy.” (Emphasis added.) Thus,
§ 554.44 creates a presumption in favor of tenancy in common. Matter of Estate of Kappler, 418
Mich 237, 239; 341 NW2d 113 (1983). MCL 554.45 provides an exception to this rule, stating
that, “[t]he preceding section shall not apply to mortgages, nor to devises or grants made in
trust, or made to executors, or to husband and wife.” (Emphasis added.) These statutes
abrogate the common law principles regarding joint tenancy, and because they are not limited to
natural persons or otherwise exclude trusts, the conveyance at issue does not fail by operation of
law.
3
The common law rule against perpetuities has been adopted in Michigan by statute, but has
been amended to allow for perpetual trusts of personal property. MCL 554.51, et seq.; MCL
554.71, et seq.; 554.91 et seq.; Moffit v Sederlund, 145 Mich App 1, 14; 378 NW2d 491 (1985).
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MCL 8.3 states, “In the construction of the statutes of this state, the rules stated in
sections 3a to 3w shall be observed, unless such construction would be inconsistent with the
manifest intent of the legislature.” MCL 8.3l states that “[t]he word ‘person’ may extend and be
applied to bodies politic and corporate, as well as to individuals.” Although this definition does
not expressly include trusts, it does show the intention that the term “person” include entities
other than natural persons.4 Additionally, the legislature could have limited the term “person” in
§ 554.44 to mean only natural persons. We cannot read into a statute what the legislature did not
include, Book-Gilbert v Greenleaf, 302 Mich App 538, 547; 840 NW2d 743 (2013), and limiting
§ 554.44 to apply only to natural persons would require this Court to rewrite the statute.
Moreover, the presumption established in § 554.44 is limited by § 554.45, which
expressly exempts “grants made in trust.” Words in a statute should not be construed in a
vacuum, but should be read together to harmonize the meaning, giving effect to the act as a
whole. GC Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003).
The express exemption in § 554.45 of “grants made in trust,” along with its cross-reference to
§ 554.44, further evidences the legislative intent to expand the meaning of “person” to include
trusts.
Additional textual support is found in MCL 565.49, which states:
Conveyances in which the grantor or 1 or more of the grantors are named among
the grantees therein shall have the same force and effect as they would have if the
conveyance were made by a grantor or grantors who are not named among the
grantees. Conveyances expressing an intent to create a joint tenancy or tenancy
by the entireties in the grantor or grantors together with the grantee or grantees
shall be effective to create the type of ownership indicated by the terms of the
conveyance.
4
Notably, MCL 8.3l does not state that the term “person” can extend and “be applied only to
bodies politic and corporate, as well as to individuals” as the dissent concludes. MCL 8.3l does
not limit “individuals” to mean only natural persons. Because so, we apply the ordinary meaning
of the term, Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004), and turn to Black’s
Law Dictionary (11th ed), which defines “individual” as “1. Existing as an indivisible entity. 2.
Of, relating to, or involving a single person or thing, as opposed to a group.” (Emphasis added.)
Returning to the definition of “person” we note that Black’s Law Dictionary (11th ed) defines the
term as follows:
1. A human being – Also termed natural person. 2. The living body of a human
being . 3. An entity (such as a
corporation) that is recognized by law as having most of the rights and duties of a
human being • In this sense, the term includes partnerships and other associations,
whether incorporated or unincorporated. [Emphasis added.]
Thus, the plain and ordinary meaning of the terms “individual” and “person” aligns with the
definition provided by MCL 8.3l.
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Again, the legislature abrogated the common law by statute, and abolished strict adherence to the
four unities doctrine. Albro v Allen, 434 Mich 271; 454 NW2d 85 (1990). However, the statute
includes no language which hints at an intent to limit to natural persons the ability to hold a joint
tenancy with rights of survivorship. Moreover, the statute requires that this Court to give full
effect to the conveyance despite a grantor-trustee also being a grantee on an instrument
attempting to convey a joint tenancy with a right of survivorship.
Finally, there are no provisions in EPIC5 that suggest any legislative intent to prohibit a
trust from holding and conveying real property in this manner. Rather, in the definitions section
of EPIC, MCL 700.1106(o), defines “person” as “an individual or an organization.” MCL
700.1106(i), further defines “organization” as, “a corporation, business trust, estate, trust,
partnership, limited liability company, association, or joint venture; governmental subdivision,
agency, or instrumentality; public corporation; or another legal or commercial entity.” (Emphasis
added.) In Article II of EPIC, which concerns intestacy, wills, and donative transfers, the
legislature has limited the term “persons” in the following manner:
(1) This part shall be known and may be cited as the “disclaimer of
property interests law”.
(2) As used in this part:
***
(h) “Person” includes an entity and an individual, but does not include a
fiduciary, an estate, or a trust. [MCL 700.2901 (emphasis added).]
“Generally, when language is included in one section of a statute but omitted from
another section, it is presumed that the drafters acted intentionally and purposely in their
inclusion or exclusion.” People v Peltola, 489 Mich 174, 185; 803 NW2d 140 (2011). “Courts
cannot assume that the Legislature inadvertently omitted from one statute the language that it
placed in another statute, and then, on the basis of that assumption, apply what is not there.” Id.
(cleaned up).
When reading the act as a whole, it is apparent the legislature knew how to limit the
definition of person to exclude trusts from the definition of “person” as it did so in § 700.2901.
However, this Court cannot read that same limiting language into the statutes regarding property
conveyances, §§ 554.44-45 and § 565.49, or read as surplusage the provisions in § 700.1106
which recognize a trust as a person. Robinson v City of Lansing, 486 Mich 1, 21; 782 NW2d 171
(2010) (“In interpreting a statute, we must avoid a construction that would render part of the
5
The Estates and Protected Individuals Code, Act 386 of 1998 (EPIC). “In 1998, the Michigan
Legislature enacted EPIC, 1998 PA 386, which became effective April 1, 2000. The new law,
which repealed and replaced the Revised Probate Code, 1978 PA 642, MCL 700.1 et seq., was
intended to modernize probate practice by simplifying and clarifying the law concerning
decedents’ affairs and by creating a more efficient probate system. MCL 700.1201; MCL
700.1303(3).” In re Leete Estate, 290 Mich App 647, 661; 803 NW2d 889 (2010).
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statute surplusage or nugatory.”) (cleaned up).6
Accordingly, we hold that a trust may hold and convey real property as a joint tenant with
rights of survivorship. The conveyances from the Fitzpatrick Trust to itself, plaintiffs, and
defendant, as joint tenants with rights of survivorship, do not fail by operation of law, and we
reverse the circuit court’s ruling on this issue.
IV. PARTITION AND CONTRIBUTION
Additionally, the circuit court’s ruling on Count II, requesting partition of the property,
was based on the proportionate property interests of the parties, which in turn was based on an
erroneous legal conclusion, and is therefore vacated.
With regard to Count III, plaintiffs’ request for contribution, we affirm. “Contribution is
an equitable remedy based on principles of natural justice.” Tkachik v Mandeville, 487 Mich 38,
47; 790 NW2d 260 (2010). The circuit court’s ruling on this issue was not made with regard to
the respective property interests of the parties. In fact, it was made in disregard of those
interests, assessing the four parties equal shares of the costs, relying on the equitable maxim that
“equality is equity.”
6
The dissent presumably concludes that the legislature has not abrogated the common law, and
therefore, a trust cannot hold property as a joint tenant with the right of survivorship because
trusts cannot die as a natural person does. As we stated supra, this is a questionable extension of
the common law, which only prohibited the monarch and corporations from holding property in
this manner. Blackstone and the seminal case, Law Guarantee and Trust Society v Governor &
Co of the Bank of England, 24 QBD 406 (1890), teach that the fundamental principle underlying
the right of survivorship is the reciprocity of survivorship, meaning that no party may exist
perpetually. See 2 Blackstone, Commentaries on the Laws of England, pp **184-185, n 33
(stating that the right of survivorship, or jus accrescendi, “ought to be mutual” but that another
reason for prohibiting corporations from holding such rights is that it might be “ruinous to the
family of the deceased partner” to permit capital or stock to pass in this manner, and thus, “[t]he
right of survivorship, for the benefit of commerce, holds no place among merchants”) (citation
omitted). This reasoning does not apply to trusts that cannot exist in perpetuity. See MCL
554.51, et seq.; MCL 554.71, et seq.; 554.91 et seq. Accordingly, there is no reason why the
right of survivorship should be made exclusive to beings that enjoy a natural life, as opposed to
trusts that also are subject to the rule against perpetuities.
Further, the dissent recites the Black’s Law Dictionary (11th ed) definitions of “right of
survivorship” and “death” for the proposition that the right of survivorship may only be held by a
natural person susceptible to “cessation of all vital functions and signs.” However, the complete
entry for “death” reads as follows: “The ending of life; the cessation of all vital functions and
signs. — Also termed decease; demise.” “Demise” is defined as, “[t]he death of a person or
(figuratively) of a thing; the end of something that used to exist .” Black’s Law Dictionary (11th ed). Accordingly, the plain meaning of the terms
associated with rights of survivorship do not limit enjoyment of this right to only natural persons.
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V. LATE-OFFERED DOCUMENTATION
Defendant argues that the circuit court erred by receiving, and considering, more than
300 pages of documentation plaintiffs offered only as the case proceeded to the issue of
contribution. We disagree. We review a circuit court’s evidentiary rulings for an abuse of
discretion. Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993). This
includes a court’s decisions concerning discovery. Baker v Oakwood Hosp Corp, 239 Mich App
461, 478; 608 NW2d 823 (2000). “A trial court does not abuse its discretion when its decision
falls within the range of principled outcomes.” Rock v Crocker, 499 Mich 247, 260; 884 NW2d
227 (2016).
Defendant characterizes plaintiffs’ late submission of documents as occurring less than
24 hours before trial, but, in fact, it was on the eve of the day originally scheduled for trial on the
issue of contribution, but which proceeding brought to light that plaintiff Fryer could not be
present because of a medical issue, and also that the parties had agreed to have the court decide
the question of contribution on the basis of briefing to be completed several weeks hence.
In responding to defendant’s motion to disallow the recent submissions, the circuit court
took into account, among other things, that a decision on contribution was still several weeks
away:
First, any documents that were identified either formally as trial exhibits or that
were produced as part of discovery are available as trial documents in this case,
which would include largely apparently, based on the representations of counsel,
the documentation that has been offered or is intended to be offered by the plain-
tiff in this case; however, any documents that were not specifically identified or
reasonably identified pursuant to the normal general identifications that attorneys
use in their witness and exhibit lists would not be admissible. There will be an
opportunity in reply briefs for argument with regard to admissibility of docu-
mentation. So, my expectation is that probably largely in the reply briefs there
will be arguments regarding admissibility of individual documents, the parties are
welcome to make those for any reason whatsoever and the Court will rule on
those in a case by case basis. But, again, these documents were largely provided
by the defense, they are known to the defense, while they were not specifically
identified as trial exhibits and while defendant is correct the initial trial was to be
heard I believe in the fall of 2016, which would mean the initial trial exhibits
would have been due in the fall or late summer, August probably of 2016, we are
now six months beyond that, we have had multiple hearings on this matter since
that time, the element of surprise if you will particularly with regard to matters
that have been produced pursuant to discovery requests simply doesn’t exist. The
parties know what the files are, they know what the potential exhibits are, so,
again, we’ll allow matters that are at least identified somehow in the witness and
exhibit list and we’ll take argument regarding anything that isn’t or any objections
to matters that are on the witness exhibit list in the reply briefs and the Court will
decide those on a case by case basis.
On appeal, defendant continues to complain about the filing of “305 pages of proposed
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trial exhibits,” without any of the differentiation that the circuit court called for. Further,
defendant does not dispute the validity of the court’s distinguishing between documents that
were and were not “specifically identified or reasonably identified pursuant to the normal general
identification that attorneys use in the witness and exhibit lists,” does not take issue with the
court’s statement concerning what would and would not be deemed admissible thereafter, and
does not assert that she acted on the invitation to specify objectionable documents in the briefing
to follow, let alone that the circuit court made any erroneous decisions in connection with such
activity.
To summarize, defendant on appeal reiterates the general objection to plaintiffs’ offering
of more than 300 pages of documents collectively, with no acknowledgement that the circuit
court was prepared to distinguish the offerings in meaningful ways and issue decisions on
admissibility accordingly. Defendant’s failure to offer cogent argument relating to the circuit
court’s thoughtful ruling from the bench on her objection to plaintiffs’ recent offering of
abundant production, or to assert that she accepted the court’s invitation to sort through the
documents and offer more nuanced reasons for objecting to the admission of some, constitutes
abandonment of the issue. See DeGeorge v Warheit, 276 Mich App 587, 594-595; 741 NW2d
384 (2007) (“It is not enough for an appellant to simply announce a position or assert an error in
his or her brief and then leave it up to this Court to discover and rationalize the basis for the
claims, or unravel and elaborate the appellant’s arguments, and then search for authority either to
sustain or reject the appellant’s position.”).
VI. CONCLUSION
We reverse in part, vacate in part, affirm in part, and remand to the circuit court for
further proceedings consistent with this opinion, including consideration of whether, in light of
this holding, the circuit court has subject matter jurisdiction to hear this case.
/s/ Jonathan Tukel
/s/ Michael J. Riordan
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