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 Guardianship of VIRGINIA WAHAB.
LOURDES NURSING HOME, UNPUBLISHED
January 30, 2020
Petitioner-Appellee,
and
JON B. MUNGER, Guardian of VIRGINIA
WAHAB, a legally protected person now
deceased,
Appellee,
v No. 343838; 345132
Oakland Probate Court
MIMI BRUN, LC No. 2016-370475-GA
Appellant,
and
ELLEN MORGAN, SISTER HELEN ESSA, and
JENNIFER CARNEY,
Other Parties.
In re Conservatorship of VIRGINIA WAHAB.
_________________________________________
JON B. MUNGER, Conservator of VIRGINIA
WAHAB, a legally protected person now
deceased,
Petitioner-Appellee,
-1-
v No. 347501
Oakland Probate Court
MIMI BRUN, LC No. 2016-371616-CA
Appellant,
and
ELLEN MORGAN, SISTER HELEN ESSA, and
JENNIFER CARNEY,
Other Parties
and
LOURDES NURSING HOME, BRADLEY
SILVERSTEIN, MARK SHAPIRO, and
KIMBERLY SHAPIRO,
Other Parties-Appellees.
_________________________________________
Before: METER, P.J., and FORT HOOD and REDFORD, JJ.
PER CURIAM.
These appeals concern eight orders entered by the probate court in the guardianship and
conservatorship of Virginia Wahab (the ward). In Docket No. 343838, appellant, Mimi Brun,
the ward’s adult daughter, appeals by right the probate court’s order denying appellant’s motion
to vacate a bench warrant and injunction. In Docket No. 345132, appellant appeals by right the
probate court’s opinion and order terminating the guardianship and conservatorship. On appeal,
appellant also challenges the order appointing a guardian, the order appointing a special fiduciary
and revoking appellant’s power of attorney, the order denying appellant’s motion for
reconsideration of the previously mentioned Guardianship Orders, and the order requiring
appellant to pay appellee Lourdes Nursing Home (Lourdes) for the ward’s care. In Docket No.
347501, appellant appeals by leave granted the probate court’s opinion and order terminating the
conservatorship and related order terminating the conservatorship, and the probate court’s order
discharging the estate. This Court consolidated these appeals on its own motion.1 We affirm in
each appeal.
1
See In re Conservatorship of Virginia Wahab, unpublished order of the Court of Appeals,
issued June 14, 2019 (Docket No. 347501).
-2-
I. BACKGROUND
In LC No. 2016-370475-GA, the probate court in June 2016 appointed a guardian for the
ward, who at 94-years-old suffered from dementia and declining health. At the time, the ward’s
bill at Lourdes remained unpaid. Apparently, the ward’s insurance coverage had lapsed and her
then-power of attorney, appellant, had not arranged for Medicaid and had left the ward in
Lourdes’s care where she had incurred about $31,000 in charges. In addition to ordering the
appointment of a guardian, Jon Munger, the probate court also entered an order appointing
Munger as special fiduciary and revoking appellant’s power of attorney (hereinafter, collectively
the “Guardianship Orders”). Soon after becoming guardian, Munger, in his efforts to obtain
Medicaid for the ward, discovered that appellant had transferred the ward’s Oak Park, Michigan
home to herself and had made multiple wire transfers from the ward’s accounts. The probate
court entered an order appointing Munger as conservator in LC No. 2016-371616-CA.
The guardianship and conservatorship did not go smoothly, with Munger filing motions
to compel an accounting and to limit visitation and appellant filing a motion for the release of her
mother. At an October 2016 hearing, the parties indicated that they had settled certain disputes,
including that appellant had negotiated payment of the outstanding balance owed to Lourdes and
that Lourdes was simply waiting to be paid. That same day, the probate court entered an order
that appellant would pay Lourdes $25,000 on or before October 30, 2016 (the “Settlement
Order”).
When appellant did not remit payment pursuant to the Settlement Order, Lourdes, in
December 2016, filed a petition for a show-cause order. The probate court granted the order. In
the interim, Lourdes also filed an emergency motion for a temporary restraining order as a result
of appellant’s allegedly intimidating behavior with Lourdes’s staff. When appellant failed to
appear at the show-cause hearing, the probate court issued a bench warrant and also issued an
injunction temporarily preventing appellant from entering Lourdes’s facility.
More than six months passed before appellant appeared before the probate court. In
October 2017, she moved to vacate the Settlement Order, asserting that the transcript of the
hearing did not establish that she had agreed to pay Lourdes $25,000. At about the same time,
appellant filed a motion to terminate both the guardianship and conservatorship.
At the hearing on appellant’s motion to vacate in December 2017, the probate court
reviewed the transcript and agreed that $25,000 was not specified on the record. The probate
court noted, however, that at the time the settlement was entered, the outstanding balance owed
to the nursing home was approximately $50,000, that appellant had agreed to pay by month’s
end but had not paid anything, and that appellant was free to negotiate a different amount with
Lourdes if Lourdes was willing to undertake further negotiations. The probate court stated:
I will set aside that provision for the $25,000.00 agreement, because it wasn’t
specified on the record, and whatever the original amount was stands.
Upon questioning from appellant’s counsel, the probate court clarified:
-3-
[W]hatever the amount was that was owing prior to this supposed negotiation will
stand.
Thereafter, the probate court entered an order modifying the Settlement Order “by deleting the
portion of the order requiring Mimi Brun to pay Lourdes $25,000.00 prior to October 30, 2016.”
On the same date, the court entered an order releasing the bench warrant.
Subsequently, Lourdes filed a motion for entry of an order requiring appellant to pay
Lourdes for the ward’s care. Lourdes pointed out that the probate court had found at the
December 2017 hearing that appellant was liable for whatever charges remained owing as of
October 5, 2016. Lourdes attached to the motion a copy of the patient-contract form (“Patient
Contract”), under which appellant agreed as follows:
On behalf of Virginia Wahab, I, Mimi Brun, Private Pay Responsible Party,
hereby agree to pay Lourdes, Inc. for such care and services provided to Virginia
Wahab the sum of $352.00 per day.
The end of the Patient Contract provided:
“RESPONSIBLE PARTY/GUARANTEE
The undersigned agrees to be liable for payments due under this Contract . . . .”
Appellant provided her signature under this statement, which she dated February 24, 2016.
Before the hearing on Lourdes’s motion for payment, the probate court held a two-day
bench trial on appellant’s motion to terminate the guardianship and conservatorship. After the
trial and another hearing on the motion for payment, the probate court entered an order requiring
appellant to pay Lourdes $64,353 and an opinion and order terminating the guardianship and
conservatorship. In the latter (the “Termination Order”), the probate court found that appellant
remained contractually liable to Lourdes and that Lourdes could grant or deny appellant access to
Lourdes as it saw fit. Then, after a hearing on Munger’s final accounting, the probate court
entered an order of discharge on September 10, 2018 (the “Discharge Order”), finding that
Munger had fulfilled his fiduciary duties and closing the estate. These appeals followed.
II. DOCKET NO. 343838
In Docket No. 343838, appellant contends that the probate court erred by issuing the
show-cause order, and the subsequent orders that followed, including the bench warrant and
injunction, because service of process was defective. Appellant asks this Court, therefore, to
hold these orders void ab initio. Additionally, appellant claims that the bench warrant should be
void because the probate court failed to make any findings of fact or conclusions of law to
support its imposition. Appellant raises a similar argument with regard to the injunction,
asserting that Lourdes did not meet the four-part test necessary for a preliminary injunction and
that the court failed to make findings under this test.
These issues, however, are moot. It is well established that this Court will not decide
moot issues; i.e., issues that have no practical legal effect on the case before us. People v
-4-
Richmond, 486 Mich 29, 34-35; 782 NW2d 187 (2010). In this case, appellant eventually
complied with the probate court’s show-cause order by appearing in court to contest the
Settlement Order; accordingly, the probate court released the bench warrant. Moreover, the
probate court granted appellant’s motion to terminate the guardianship, restored her status as the
ward’s power of attorney, and returned the ward to appellant’s care. The probate court ended the
temporary restraining order, thereby allowing appellant to enter Lourdes’s premises. To declare
any of these orders void ab initio, then, would be purposeless given that appellant has already
obtained relief from these orders in the probate court.
When issues raised by a party on appeal are moot, we will decline to consider the
substantive merits of the claim unless an exception to the mootness doctrine exists. The only
exception appellant asserts—and only in relation to the bench warrant—is that the bench warrant
could have collateral legal consequence in a potential fraud claim against appellees. See Mead v
Batchlor, 435 Mich 480, 486-487; 460 NW2d 493 (1990), abrogated on other grounds in Turner
v Rogers, 564 US 431; 131 S Ct 2507; 180 L Ed 2d 452 (2011). Appellant argues that the bench
warrant “continues to validate the fraudulent $25,000” in the Settlement Order and affects her in
a material way moving forward because she has a “plausible cause of action against Appellees
for . . . seeking and obtaining a Bench Warrant” based on the fraudulent provision in the
Settlement Order. This argument is without merit. The probate court issued the bench warrant
because appellant failed to appear to show-cause why she should not have to pay the $25,000
previously ordered. This $25,000 amount was subsequently vacated on appellant’s motion and
the probate court’s use of its contempt powers to prompt appellant’s appearance before it offers
no validation that the $25,000 order was proper. In other words, the basis for the bench warrant
was appellant’s nonappearance; whether the amount of the Settlement Order was proper was a
separate issue resolved in appellant’s favor. Accordingly, we decline to address the
aforementioned issues as they have no practical legal effect on controversies now existing.
III. DOCKET NO. 345132
A. GUARDIANSHIP ORDERS
In Docket No. 345132, appellant first argues that the Guardianship Orders, including the
order denying reconsideration of the Guardianship Orders, should be held void ab initio for a
variety of procedural and substantive deficiencies. Again, however, these issues are moot
because appellant obtained relief in the probate court. The probate court terminated the
guardianship in August 2018, appellant was returned to her position as the ward’s power of
attorney, and the ward was returned to appellant’s care. Because the probate court has already
terminated the guardianship, declaring the Guardianship Orders void would have no practical
effect on any existing controversy. Since appellant has not shown that any exception to the
mootness doctrine applies, we decline to address this issue.
B. ORDER REQUIRING PAYMENT
Next, appellant argues that that the probate court abused its discretion by denying
appellant her right to present evidence at the hearing on Lourdes’s motion for payment.
Appellant asserts that she is not liable for any amount under the Patient Contract, given that the
contract was between the ward and Lourdes, and that the probate court erred by preventing her
-5-
from presenting evidence showing that the contract Lourdes presented was fraudulent. The
probate court’s dispositional rulings are reviewed for an abuse of discretion. In re Guardianship
of Redd, 321 Mich App 398, 403; 909 NW2d 289 (2017). The probate court’s exercise of its
inherent power to control the proceedings before it “may be disturbed only upon a finding that
there has been a clear abuse of discretion.” Maldonado v Ford Motor Co, 476 Mich 372, 388,
719 NW2d 809 (2006). “A probate court abuses its discretion when it chooses an outcome
outside the range of reasonable and principled outcomes.” In re Guardianship of Redd, 321
Mich App at 403 (internal citation and quotation marks omitted).
After the probate court struck the portion of the Settlement Order requiring appellant to
pay Lourdes $25,000, Lourdes moved for entry of an order requiring appellant to pay Lourdes.
Lourdes based its motion on the Patient Contract, as well as the court’s statements at the
December 2017 hearing setting aside the Settlement Order and indicating that appellant was
liable for “whatever” amount was owed to Lourdes under the contract as of October 5, 2017.
Appellant did not file a written response to the motion. At the hearing, however, appellant
sought to introduce for the first time evidence that the Patient Contract Lourdes had submitted
was fraudulent. The probate court stated that it would not allow the presentation of this evidence
at the immediate hearing, but that appellant could file a separate motion seeking to challenge the
contract with the proposed evidence. Appellant never filed such a motion.
Appellant’s failure to file a written response left Lourdes without notice that appellant
intended to challenge the validity of the contract. By making her argument for the first time at
the hearing, appellant precluded Lourdes from investigating the argument or preparing a defense.
The trial court was well within its discretion in directing appellant to make this argument through
a written motion. See MCR 2.119(E). Appellant, having not taken advantage of the opportunity
to file a written motion challenging the contract’s validity, created the very error she now
complains of on appeal. We will not allow appellant to harbor error as an appellate parachute
and therefore decline to address this issue. See Tingley v Kortz, 262 Mich App 583, 590; 688
NW2d 291 (2004).
C. TERMINATION OF GUARDIAPNSHIP ORDER
Appellant also requests that this Court strike 17 findings from the probate court’s
Termination Order because those findings are, allegedly, either not true or not part of the record.
We review the probate court’s findings of fact for clear error. In re Guardianship of Redd, 321
Mich App at 403. “A factual finding is clearly erroneous when this Court is left with a definite
and firm conviction that a mistake has been made.” Id. (internal citation and quotation marks
omitted).
At the outset, we must note that appellant was the prevailing party on her motion to
terminate the guardianship. Despite her issue with the trial court’s findings, appellant received
the relief she requested: the guardianship was terminated. Notwithstanding that the judgment
was in her favor, appellant disputes the probate court’s findings that Munger provided the ward
satisfactory care, custody, and control and served the ward’s interests; that Munger should no
longer be subject to appellant’s “vile retribution;” that the ward received appropriate care at
Lourdes; that appellant was never able to account for the ward’s funds and took no steps to
investigate or recover funds; that appellant was prohibited from visiting the ward at Lourdes
-6-
because of appellant’s abusive conduct and failure to comply with court orders; and that
appellant was personally liable to Lourdes under the Patient Contract. Appellant also disputes
multiple findings regarding appellant’s conduct during the litigation.
“To maintain an appeal, a person must ordinarily be ‘aggrieved’ by the lower court’s
decision.” Spires v Bergman, 276 Mich App 432, 441; 741 NW2d 523 (2007). An aggrieved
party is not one who is merely disappointed over an aspect of the lower court’s decision. Rather,
to maintain an appeal, a litigant must demonstrate that she has suffered “a concrete and
particularized injury” as a result of the trial court’s actions. Federated Ins Co v Oakland Co Rd
Comm, 475 Mich 286, 291-292; 715 NW2d 846 (2006).
Of the challenged statements, appellant was certainly aggrieved by the probate court’s
finding that she is personally liable to Lourdes under the Patient Contact. Appellant, however,
has not established that the finding was clearly erroneous. As previously noted, the Patient
Contract was signed by appellant as the private-pay responsible party, with an express agreement
to be liable for amounts due under the contract. Appellant declined to take advantage of the
probate court’s opportunity to challenge the Patient Contract below through a properly noticed
written motion. Without any properly admitted evidence to the contrary, there is nothing in the
record from which the probate court could find that appellant was not personally liable to
Lourdes. Given that appellant failed to pursue a challenge to the Patient Contract below, we
decline to entertain any challenge to the contract on appeal. Accordingly, appellant’s argument
is without merit.
With regard to the remaining 16 contested factual findings, appellant has failed to explain
how she suffered a particularized or concrete injury as a result of those findings or how she
would benefit from striking the findings. Appellant cursorily states at the outset that the probate
court made the findings to insulate Munger from liability, implying that the findings could have
collateral legal consequences. Yet, appellant fails to provide any analysis of how each particular
finding could harm her in a hypothetical lawsuit against Munger. “It is not enough for an
appellant in his brief simply to announce a position or assert an error and then leave it up to this
Court to discover and rationalize the basis for his claims.” Yee v Shiawassee Co Bd of Comm’rs,
251 Mich App 379, 406; 651 NW2d 756 (2002) (internal citation and block notation omitted).
Consequently, having failed to demonstrate a concrete and particularized harm, we conclude that
appellant has failed to demonstrate that she is an aggrieved party and decline to consider further
these findings.
IV. DOCKET NO. 347501
A. TERMINATION OF CONSERVATORSHIP ORDER
In Docket No. 347501, appellant challenges the Termination Order as to the
conservatorship, again arguing that the same factual findings were erroneous. We have already
concluded that appellant’s argument regarding the trial court’s finding that she is personally
liable to Lourdes is without merit and that appellant has failed to demonstrate that she was
aggrieved by the remaining findings. These conclusions apply with equal force to appellant’s
challenge to the termination of the conservatorship. Thus, appellant’s argument is without merit.
Appellant additionally raises multiple issues outside the scope of this Court’s order granting
-7-
appellant’s delayed application for leave to appeal, which limited consideration of the questions
on appeal to the Termination Order and the Discharge Order. Because these issues are not
related to either the Termination Order or the Discharge Order, we do not consider them. See
MCR 7.205(E)(4).
B. DISCHARGE ORDER
Finally, appellant argues that a finding in the probate court’s Discharge Order is clearly
erroneous because there is no evidence to support it. The Discharge Order was issued on a
Supreme Court Administrative Office approved form for “order of discharge.” The order
discharged Munger as conservator after the court had accepted Munger’s final accounting of the
ward’s estate and closed the estate. The order provided the following language: “[i]t appears the
fiduciary in this matter has fully performed the duties required by law.” It is this finding that
appellant takes issue with on appeal.
Again, only an aggrieved party may maintain an appeal. “To be aggrieved, one must
have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility
arising from some unknown and future contingency.” In re Estate of Trankla, 321 Mich 478,
482; 32 NW2d 715 (1948) (internal citation and quotation marks omitted). Again, “a litigant
must have suffered a concrete and particularized injury” arising from the lower court’s actions.
Federated Ins Co, 475 Mich at 291-292.
Certainly, appellant is not aggrieved by the termination of the conservatorship—this was
the result appellant sought. Rather, appellant suggests that she was aggrieved by the probate
court’s finding in the Discharge Order indicating that Munger “appears . . . [to have] fully
performed the duties required by law.” Appellant argues that this finding gives Munger a
defense in a hypothetical future lawsuit she may maintain against Munger for breach of his
fiduciary duties. We disagree. The Discharge Order in no way deprives plaintiff of her right to
pursue Munger for any allegedly unlawful acts and, further, the finding in no way provides
Munger with an air-tight defense, should a claim be filed and should he raise such a defense.
Indeed, the use of the term “appears” indicates that the probate court was not making a definite
factual finding intended to foreclose further exploration of the issue. Because appellant has
failed to demonstrate a concrete, particularized harm arising from this finding, we conclude that
she has failed to show that she is aggrieved by the Discharge Order. Therefore, we decline to
address this issue.
Affirmed.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
/s/ James Robert Redford
-8-