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STATE OF MICHIGAN 

COURT OF APPEALS 

LAURA ABBONIZIO, MELANIE 

HULSLANDER, a Minor, by Next Friend 

BRYAN HULSLANDER, and PRESTON 

HULSLANDER, 

 Plaintiffs-Appellants, 

UNPUBLISHED 

June 1, 2017 

v No. 330022 

Wayne Circuit Court 

BANK OF AMERICA, NA, COMERICA BANK 

& TRUST, NA, and LEVEL ONE BANK, 

LC No. 15-005474-NZ 

 Defendants-Appellees. 

Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ. 

PER CURIAM. 

 Plaintiffs, Laura Abbonizio, Melanie Hulslander, a minor, by next friend Bryan 

Hulslander, and Preston Hulslander, appeal as of right the order granting summary disposition in 

favor of defendants, Bank of America, NA, Comerica Bank & Trust, NA, and Level One Bank, 

regarding plaintiffs’ claim of conversion of checks under the Uniform Commercial Code (UCC), 

MCL 440.1101 et seq. We affirm. 

 This matter arises out of the misappropriation of funds by plaintiffs’ attorney, Brian J. 

Benner, following his representation for claims stemming from a motor vehicle accident. 

Abbonizio was voluntarily paid personal injury protection (PIP) benefits in the amount of 

$7,737.78. The third-party negligence action was settled for $400,000. The checks written by 

the insurers to plaintiffs and Benner were received by Benner, signed by Benner as plaintiffs’ 

personal representative, with Benner designated in the signatory line as having power of attorney 

for all plaintiffs, and deposited in his client trust fund (IOLTA) account. Thereafter, Benner 

removed all of the funds without payment to plaintiffs. 

 Plaintiffs asserted a claim for conversion against defendants under the UCC. Plaintiffs 

contended that the banks, and in particular Level One Bank as a depository bank, violated the 

provisions of the UCC by negotiating a check without the proper authorization by all payees, 

thus breaching the presentment warranties. See MCL 440.4208. 

 Defendants moved for summary disposition pursuant to MCR 2.116(C)(4) and (10), and 

the trial court granted the motion. In granting summary disposition in favor of defendants, the 
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trial court did not specifically address the provisions of the UCC cited by plaintiffs in support of 

their claim of violation of the statutory provisions and the imposition of liability. Rather, the 

trial court found that plaintiffs’ claims were not sustainable due to the absence of proximate 

causation; in other words the harm suffered by plaintiffs was not attributable to the banks, but 

rather, the subsequent wrongdoing of Benner. 

 As discussed in Bernardoni v City of Saginaw, 499 Mich 470, 472; 886 NW2d 109 

(2016), a trial court’s decision on a motion for summary disposition is reviewed de novo “to 

determine if the moving party is entitled to judgment as a matter of law.” “Jurisdictional 

questions under MCR 2.116(C)(4) are questions of law, which are reviewed de novo.” Fulicea v 

State of Michigan, 308 Mich App 230, 232; 863 NW2d 385 (2014) (citation and quotation marks 

omitted). “A motion for summary disposition made under MCR 2.116(C)(10) tests the factual 

sufficiency of the complaint. The Court considers all affidavits, pleadings, depositions, 

admissions, and other evidence submitted by the parties in the light most favorable to the party 

opposing the motion.” Bernardoni, 499 Mich at 472-473 (citation omitted). Pursuant to MCR 

2.116(G)(4): 

A motion under subrule (C)(10) must specifically identify the issues as to which 

the moving party believes there is no genuine issue as to any material fact. When 

a motion under subrule (C)(10) is made and supported as provided in this rule, an 

adverse party may not rest upon the mere allegations or denials of his or her 

pleading, but must, by affidavits or as otherwise provided in this rule, set forth 

specific facts showing that there is a genuine issue for trial. If the adverse party 

does not so respond, judgment, if appropriate, shall be entered against him or her. 

Hence, “[t]his rule requires the adverse party to set forth specific facts at the time of the motion 

showing a genuine issue for trial. A reviewing court should consider the substantively 

admissible evidence actually proffered by the opposing party. When the proffered evidence fails 

to establish a genuine issue regarding any material fact, the moving party is entitled to judgment 

as a matter of law.” Bernardoni, 499 Mich at 473 (citations omitted). 

 On appeal, plaintiffs assert that the trial court erred in granting summary disposition to 

defendants because the signatures on behalf of the Hulslander plaintiffs were unauthorized, 

rendering the check invalid and its deposit a conversion. Plaintiffs further assert that the powers 

of attorney signed by Abbonizio were invalid and that the Hulslanders’ claims should not be 

bifurcated based on jurisdictional limits. Finally, plaintiffs suggest that the grant of summary 

disposition was premature given the need for continuing discovery. We disagree. 

 Initially, a point of clarification is required. Plaintiffs frequently refer to Benner’s 

endorsement of the checks as a “forged” signature. This is not an accurate characterization 

premised on the statutory language, which determines the applicable provision of the UCC and 

the related defenses that are available. MCL 440.3420 references and is relevant to instruments 

paid to “a person not entitled to enforce the instrument or receive payment.” MCL 440.3420(1). 

“This language is broad and encompasses many circumstances.” John Hancock Fin Servs, Inc v 
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Old Kent Bank, 185 F Supp 2d 771, 777 (ED Mich, 2002), aff’d 346 F3d 727 (CA 6, 2003).1

 In 

contrast, MCL 440.3406 “limits the preclusion defense to instances in which ‘an alteration of an 

instrument’ or ‘the making of a forged signature’ occurs.” Id. As such, the language comprising 

MCL 440.3406 is deemed to be “narrower” than that contained in MCL 440.3420, leading to the 

conclusion that the cited “provisions do not encompass the same circumstances.” Id. MCL 

440.3406, comment 2, states in relevant part: “Unauthorized signature is a broader concept that 

includes not only forgery but also the signature of an agent which does not bind the principal 

under the law of agency. The agency cases are resolved independently under agency law. 

Section 3-406 is not necessary in those cases.” Thus, while an unauthorized agent is a “person 

not entitled to enforce the instrument” and payment on a check to an unauthorized agent would 

constitute conversion under § 440.3420, the preclusion defense2 would be inapplicable. John 

Hancock Fin Servs, Inc, 185 F Supp 2d at 777. 

 Because Benner’s signature, asserted in a representative capacity for Bryan Hulslander, 

would constitute an unauthorized signature and not a forgery, MCL 440.3420 governs this claim. 

MCL 440.3420 states, in relevant part: 

(1) The law applicable to conversion of personal property applies to instruments. 

An instrument is also converted if it is taken by transfer, other than a negotiation, 

from a person not entitled to enforce the instrument or a bank makes or obtains 

payment with respect to the instrument for a person not entitled to enforce the 

instrument or receive payment . . . 

* * * 

(3) A representative, other than a depository bank, who has in good faith dealt 

with an instrument or its proceeds on behalf of one who was not the person 

entitled to enforce the instrument is not liable in conversion to that person beyond 

the amount of any proceeds that it has not paid out. 

A “depository bank” is defined in MCL 440.4105(b) as “the first bank to take an item even 

though it is also the payor bank, unless the item is presented for immediate payment over the 

counter.” It is undisputed by the parties that Level One Bank is a “depository bank” in 

accordance with the statutory definition. 

 The $400,000 check issued by Auto-Owners Insurance indicated that it was payable, “to 

the Order of Laura Abbonizio, Bryan Hulslander as Next Friend of Preston Hulslander and 

Melanie Hulslander and their attorney Brian J. Benner, P.C.” The five checks issued by AAA 

were payable to “Benner & Foran and Laura Abbonizio.” The use of the word “and” in 

 

1

 Although not binding on this Court, federal caselaw may be viewed as “persuasive authority.” 

Travelers Property Cas Co of America v Peaker Servs, Inc, 306 Mich App 178, 188; 855 NW2d 

523 (2014) (citation omitted). 

2

 See UCC 3-406, e.g. 
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identifying the payees is relevant. In accordance with the applicable portion of MCL 

440.3110(4), “If an instrument is payable to 2 or more persons not alternatively, it is payable to 

all of them and may be negotiated, discharged, or enforced only by all of them.” (Emphasis 

added.). Thus, the Auto-Owners check must have been signed by all identified payees. 

 Although Abbonizio challenges the validity of her signed powers of attorney, the initial 

dispute centers on the acceptance and negotiation of the $400,000 check by Level One Bank 

based on Benner’s alleged unauthorized endorsement of the instrument in the absence of an 

executed power of attorney for Bryan Hulslander in his capacity as next friend for the minor 

children. There is, in actuality, no dispute that Benner’s endorsement of the check on behalf of 

Bryan Hulslander as next friend of the minor children was unauthorized given the absence of any 

documentation executed by Hulslander granting such authority to Benner. As such, MCL 

440.3110(4) establishes that a conversion occurred with respect to Hulslander. Specifically, 

MCL 440.3110(4) provides, in pertinent part, “If an instrument is payable to 2 or more persons 

not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only 

by all of them.” This is buttressed by the associated Comments discussing this subsection, which 

explain: 

If an instrument is payable to X and Y, neither X nor Y acting alone is the person 

to whom the instrument is payable. Neither person, acting alone, can be the 

holder of the instrument. The instrument is “payable to an identified person.” 

The “identified person” is X and Y acting jointly. Thus, . . . X or Y, acting alone, 

cannot be the holder or the person entitled to enforce or negotiate the instrument 

because neither, acting alone, is the identified person stated in the instrument. 

[MCL 440.3110, comment 4 (citations omitted.)] 

 While Benner had no executed power of attorney for Bryan Hulslander in his capacity as 

next friend for the minor children, Abbonizio, as an individual, cannot establish conversion of 

the checks with respect to herself. This is necessarily so, based on her execution of powers of 

attorney granting Benner the authority to negotiate and deposit the checks issued from Bank of 

America and Comerica Bank & Trust into his IOLTA account. 

 Abbonizio, at the outset of the automobile negligence action, signed a retainer agreement 

that granted “a specific power of attorney” to Benner “to endorse and deposit into the client trust 

account any . . . checks received . . . and made payable to [Benner] in whole or part . . .” Later in 

the litigation, following settlement of the third-party action, Abbonizio signed a second power of 

attorney, on her own behalf, granting Benner “a limited power of attorney to sign my name onto 

any settlement check received in the matter of my personal injury claim for the purpose of 

depositing said check into the Brian J. Benner, IOLTA account.” Benner, as Abbonizio’s agent, 

was thus acting with actual authority on her behalf, defined in Black’s Law Dictionary (10th ed), 

as the “[a]uthority that a principal intentionally confers on an agent or authority that the agent 

reasonably believes he or she has as a result of the agent’s dealings with the principle,” when 

depositing all of the checks (voluntary PIP payments and third-party settlement monies) into his 

trust account and no conversion of those checks occurred with respect to Abbonizio. This 

comports with MCL 440.3402(1), which states, in relevant part: 
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If a person acting, or purporting to act, as a representative signs an instrument by 

signing either the name of the represented person or the name of the signer, the 

represented person is bound by the signature to the same extent the represented 

person would be bound if the signature were on a simple contract. If the 

represented person is bound, the signature of the representative is the “authorized 

signature of the represented person” and the represented person is liable on the 

instrument, whether or not identified in the instrument. 

 So long as the powers of attorney were valid Benner had the actual authority to endorse 

and deposit into the client trust account any checks received and made payable to Benner in 

whole or part on Abbonizio’s behalf, as set forth in the retainer agreement. 

 Abbonizio’s assertion that the powers of attorney were invalid because they do not 

comport with the formalities of a durable power of attorney under MCL 700.5501 is 

disingenuous. Abbonizio contests the validity of the powers of attorney based on the failure to 

have her signature witnessed and notarized. See MCL 700.5501(2). This formality is, however, 

irrelevant because of the absence of any indication that either power of attorney was intended or 

designed to be a durable power of attorney, which requires the inclusion of very specific 

language. To be construed as a durable power of attorney, the document must contain the words 

“This power of attorney is not affected by the principal’s subsequent disability or incapacity, or 

by the lapse of time,” for example, or “This power of attorney is effective upon the disability or 

incapacity of the principal,” or “similar words showing the principal’s intent that the authority 

conferred is exercisable notwithstanding the principal’s subsequent disability or incapacity and, 

unless the power states a termination time, notwithstanding the lapse of time since the execution 

of the instrument.” MCL 700.5501(1). Hence, the failure to abide by the formalities for 

executing a durable power of attorney are not applicable where the power of attorney does not 

contain the requisite language necessary to be construed as a durable power of attorney. 

 Plaintiffs contend, however, that the endorsements cannot be bifurcated; in other words 

the unauthorized endorsement by Benner for Bryan Hulslander negates the entire transaction and 

imposes liability. In Pamar Enterprises, Inc v Huntington Bank of Mich, 228 Mich App 727; 

580 NW2d 11 (1998), a drawee and depository bank were sued for allegedly violating their 

statutory duties in improperly paying a check to one of the identified payees in the absence of an 

endorsement of a second payee. Id. at 730-731. The Court in Pamar determined that the 

endorsement of one payee, in the absence of an endorsement by the second payee, “was not 

sufficient to allow negotiation of the check.” Id. at 733. The Court, citing MCL 440.3420(1), 

found, “a bank may be liable for conversion if it makes or obtains payment on a check that is 

payable to two payees, not alternatively, but endorsed by only one of the payees.” Id. at 734. 

Thus, in accordance with Pamar and MCL 440.3420(1), “an instrument is converted if a bank 

‘makes or obtains payment with respect to the instrument for a person not entitled to enforce the 

instrument or receive payment.’ . . . A conversion action may be brought by the intended payee 

against either the depository bank or the drawee bank.” Pamar, 228 Mich App at 734 (citations 

omitted). Given the above, we agree with plaintiffs that the negotiation of the check received in 

the amount of $400,000 from Bank of America constituted a conversion under MCL 440.3110(4) 

and MCL 440.3420(1) due to the unauthorized signature of Benner on behalf of Bryan 

Hulslander. That, however, does not resolve the matter. The issue of ultimate liability rests on 

whether a defense is available to the banks. 
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 This Court addressed possible defenses available to banks for breach of the presentment 

warranty as an issue of first impression in Comerica Bank v Mich Nat’l Bank, 211 Mich App 

534, 538; 536 NW2d 298 (1995), which recognized “that a bank may escape liability for 

honoring a check on a faulty or improper endorsement, or even with no endorsement, if the bank 

can prove that the intended payee received the proceeds of the check.” The principles underlying 

the intended-payee defense were explained as “preventing a drawer from being unjustly enriched 

by recovering for an improperly paid check where the proceeds of the check in fact were 

received by the payee” and in instances “where a bank’s improper payment is not a cause of the 

drawer’s injury flowing from the transaction.” Id. As a consequence, this Court held “that the 

intended-payee defense is available to a bank in defending an action for breach of its 

presentment warranties.” Id.

 The intended-payee defense has been explained as providing “that a drawee bank is not 

liable to the drawer of a check for an improper payment if (1) the proceeds of the check reach the 

person the drawer intended to receive them and (2) the drawer suffers no loss proximately caused 

by the drawee’s improper payment.” Pamar Enterprises, Inc, 228 Mich App at 737. Plaintiffs 

contend that Abbonizio and the Hulslanders were the intended payees and did not receive any of 

the monies, obviating defendants’ ability to establish the first element of the intended-payee 

defense. Defendants, on the other hand, contend that the check was received by the intended 

payee because it was received by plaintiffs’ attorney and deposited into his IOLTA account for 

distribution. Defendants argue that because the proceeds were not ultimately used for their 

intended purpose is not relevant because the monies went into the proper account. We agree 

with defendants. 

 The checks for the PIP benefits were received by the intended payee, Abbonizio and her 

attorney, premised on their “payable to” designation and the powers of attorney executed by 

Abbonizio. The powers of attorney authorized Benner’s signature and deposit into his IOLTA 

account on behalf of Abbonizio. The loss of the monies associated with these checks was caused 

by Benner’s fraudulent conduct in removing the money from the IOLTA account and not 

distributing the proceeds in accordance with the retainer agreement. Because Abbonizio’s loss 

was not proximately caused by any improper payment by defendants, on her behalf, her claim 

cannot be sustained. 

 No different outcome occurs with reference to the Hulslanders. There is no evidence that 

Bryan Hulslander approved, directed or agreed to permit Benner to sign for him in a 

representative capacity. Given this deficiency, plaintiffs’ argue that the check that was payable 

to him as one of the identified payees did not reach the intended payee through its deposit in the 

IOLTA account. This is called into question, however, by assertions made within plaintiffs’ 

complaint indicating: 

9. Benner’s obligation was to communicate to plaintiffs that the check had 

arrived, obtain their endorsement, deposit the checks in his Trust or Iolta account 

and upon the checks clearing, distribute funds to plaintiffs for their portion of the 

settlement and distribute to others any obligation plaintiffs were required to pay 

out of the settlement funds. 
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The complaint states that it was the expectation of Abbonizio and the Hulslanders that the checks 

would be deposited in the IOLTA account. Plaintiffs’ retainer agreement also indicated the 

inclusion of the minor children, with Abbonizio signing as the adult on their behalf. Hence, 

although the $400,000 check was deposited into the IOLTA account with an unauthorized 

signature, pursuant to the allegations within the complaint, the funds did reach their intended 

destination or payee. There is no dispute or suggestion by plaintiffs that Benner was not 

functioning as their legal representative; as such, it would be the expectation of the insurance 

companies issuing the checks that the individual or entity intended to receive the payment was 

legal counsel, on behalf of his clients. Thus, it must be concluded, based on the factual 

circumstances and plaintiffs’ pleadings, that the checks were written with the intended purpose 

of being remitted to plaintiffs’ legal counsel or representative for subsequent distribution. 

 In addition, to establish the intended-payee defense it is necessary to demonstrate that the 

loss suffered was not the proximate cause of the improper payment. Plaintiffs’ contend that had 

the bank refused to negotiate the check due to the unauthorized signature, the check would not 

have been placed into the IOLTA account and, therefore, would not have been accessible for 

Benner’s fraud and conversion. This argument is without merit or legal support. The check was 

placed into the IOLTA account; at this juncture the banks had no control regarding the 

distribution of the proceeds. The loss incurred by plaintiffs is the immediate, direct and 

proximate result of Benner’s fraud and wrongdoing. 

 Plaintiffs’ contention that the deposit of the check into the IOLTA account comprises the 

proximate cause of the loss is too attenuated to be viable. Our Supreme Court has defined 

“proximate cause as that which in a natural and continuous sequence, unbroken by any new, 

independent cause, produces the injury, without which such injury would not have occurred. An 

intervening cause breaks the chain of causation and constitutes a superseding cause which 

relieves the original actor of liability; unless it is found that the intervening act was reasonably 

foreseeable. If reasonable minds could not differ regarding the proximate cause of a plaintiff’s 

injury, courts should decide the issue as a matter of law.” Black v Shafer, 499 Mich 950; 879 

NW2d 642 (2016) (citations and quotation marks omitted). Defendants’ negotiation or 

acceptance of the check did not constitute a proximate cause of the harm suffered by plaintiffs. 

Rather, it was Benner’s misuse and fraud in withdrawing the entirety of the funds from the 

IOLTA account that constituted an intervening cause of the injury, breaking the chain of 

causation and alleviating defendants’ liability. 

 Plaintiffs further assert that the grant of summary disposition was premature and that they 

should have been afforded additional discovery to depose Benner regarding his intentions. The 

trial court rejected plaintiffs’ request for continued discovery, impliedly indicating that the issue 

before the trial court comprised a matter of law. “[A] grant of summary disposition may be 

premature if the party opposing the motion has not had a reasonable opportunity to conduct 

discovery.” Huntington Nat’l Bank v Daniel J Aronoff Living Trust, 305 Mich App 496, 513; 

853 NW2d 481 (2014). “Whether a motion for summary disposition under this rule would be 

premature depends on whether further discovery stands a fair chance of uncovering factual 

support for the litigant’s position.” Id. (citation and quotation marks omitted). 

 This is not a situation where there was a lack of discovery. Rather, plaintiffs’ suggest 

that the ability to depose Benner to uncover his intentions with regard to the checks and deposits 
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would permit them to ascertain relevant information for the trial court’s consideration. The trial 

court rejected the need for the discovery requested, noting the unlikely probability that the 

information sought could be obtained given Benner’s current criminal charges and his assumed 

reluctance to engage in any admissions or statements that would further implicate his criminal 

liability and the lack of relevance of Benner’s intent to the legal issue before the trial court. As 

such, the trial court did not err in finding that the continuation, or extension, of discovery was 

unlikely to assist the trial court in ruling on the motion for summary disposition or develop 

information pertinent to the legal issue before it. 

 Based on the above analysis, this Court need not address plaintiffs’ additional challenge 

to the trial court’s grant of summary disposition premised on jurisdictional requirements. 

 Affirmed. 

/s/ Deborah A. Servitto 

/s/ Mark J. Cavanagh 

/s/ Karen M. Fort Hood