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### STATE OF MICHIGAN

COURT OF APPEALS

FRANK S. SZYMANSKI, P.C.,

Plaintiff-Appellee, UNPUBLISHED March 23, 2017

v No. 328349 Wayne Circuit Court ELIZABETH ELDRIDGE, LC No. 12-016174-CK

Defendant-Appellee.

Before: S TEPHENS , P.J., and S AAD and M ETER , JJ.

P ER C URIAM

. In this dispute over attorney fees that plaintiff claims are a llegedly owed to him 1 by defendant, the trial court, after a bench trial, found that pla intiff was entitled to an award of $27,171.44 on an account-stated claim. The final order stated that plaintiff was only allowed to collect on the amount if defendant realized a recovery in that amount from her ex-husband. Defendant appeals as of right, and we affirm.

Defendant contends that the tria l court erred in finding for p laintiff because a valid claim for an account stated depends on an agreement about a debt, and no such agreement existed here.

This Court reviews “a trial court’s findings of fact in a benc h trial for clear error and its conclusions of law de novo.” Chelsea Investment Group
, LLC v City of Chelsea , 288 Mich App 239, 250; 792 NW2d 781 (2010). “A finding is clearly erroneous if the reviewing court, on all the evidence, is left with a def inite and firm conviction that a mistake has been committed.” Thames v Thames , 191 Mich App 299, 301-302; 477 NW2d 496 (1991). “Under this standard, the reviewing court cannot reverse if the trial court’s view of the evidence is plausible.” Id . at 302.

1 While plaintiff is in fact a leg al entity, Frank S. Szymanski, P.C., because various facts in this case are from the testimony of p laintiff’s principal owner, Fra nk S. Szymanski, in this opinion we will refer to Szymanski himself as plaintiff and use the pro noun “he” when referring to plaintiff.-2- The trial court did not clearly err in entering judgment for p laintiff in the amount of $27,171.44.

The conversion of an open account into an account stated, is a n operation by which the parties assent to a sum as the correct balance due from one to the other; and whether this operati on has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessari ly exclude all inquiry into the rectitude of the account. The parties may sti ll impeach it for fraud or mistake. But so long as it is not impeached, the agreed sta tement serves in place of the original account, as the foundation of an action. It becomes an original demand, and amounts to an express promise to pay the actual sum stated. [ White v Campbell , 25 Mich 462, 467-468 (1872) (em phasis in original).]

A “mutual understanding by the parties of the truth of the acc ount, or the agreement upon a sum to stand on the balance,” is a necessary element and a “m ere rendering of an account . . . will not make the account a stated one . . . .” Id . at 468. The Supreme Court in White stated that, “as against a party receiving an account, and not objecting to it within a reasonable time, its correctness may be considered as admitted by him, and the balan ce as the debt; or, in other words, that the party rendering the account may, under such cir cumstances, treat it as an account stated . . . .” Id . However, the White Court went on to hold that if there was any objection to the amount “within a reasonable time ,” that would defeat the claim. Id . at 469.

The Supreme Court followed the White holding in its decision in Fisher Sand & Gravel Co v Neal A Sweebe
, Inc , 494 Mich 543, 558; 837 NW2d 244 (2013), where it held that an account-stated claim requires mutu al asset but that “there are instances when assent may be inferred from a party’s inaction . . .” (emphasis in original). The Fisher Court held that when a party’s assent to a balance is i nferred from inaction, “the sta ted account operates to form an implied contract.” Id . at 558-559. Because the Fisher Court found that the trial court had not considered whether the defendant objected to the plaintiff’s st atement of the account at issue, it remanded the case to the trial court for it to determine whethe r there was sufficient evidence that the defendant agreed to the amount stated, “either expressly or by implication.” Id . at 562. This Court similarly held in Keywell & Rosenfeld v Bithell , 254 Mich App 300, 330-333; 657 NW2d 759 (2002), that where the record suggested that the defendant failed to object to a law firm’s bills and explicitly conceded some of them, the trial court err ed in dismissing the plaintiff’s account-stated claim.

In the present case, the disput e at issue can appropriately be divided into two sub-issues. First, the parties dispute whether there was sufficient evidenc e of an account being submitted by plaintiff to defendant. Plain tiff argues that his testimony th at he directed that the bills, as well as two demand letters, be sent to defendant was sufficient to show that an account was stated to defendant. Defendant argues that this evidence was insufficien t, given plaintiff’s inability to provide any further details or testimony, based on his personal knowledge, that he knew the bills and letters were in fact sent. Second, assuming that plaintiff prevails on the first dispute, the parties dispute whether plaintiff can recover on an account-sta ted claim where he expressly-3- testified that defendant never agreed with him on either the am ount alleged in the complaint or the amount he requested at trial.

The first dispute is really a dispute about whether the trial court’s factual finding that plaintiff presented an account to defendant through the mailing of bills and letters was clearly erroneous. For this Court to conclude that the trial court cle arly erred in finding that an account had been stated to defendant t hrough the mailing of bills and l etters, it would have to be “left with a definite and firm conviction that a mistake has been com mitted.” Thames , 191 Mich App at 301-302. Because plaintiff testified that he instructed or directed that the bills and letters be sent, and there was no testimony by defendant denying that she received them, the trial court did not commit clear error in findi ng that such bills and letters h ad been sent. Additionally, plaintiff testified regarding a telephone call with defendant in the summ er of 2012 during which she appeared to acknowledge that she was aware of the bills. Defen dant argues that plaintiff’s testimony regarding this call s hows her objection to the accoun t. However, plaintiff did not testify that defendant objected to the account; his testimony w as that defendant wanted to talk about the bills. Because there could be any number of reasons why plaintiff would want to talk about the bills aside from an objection to the amount (such as discussing a payment plan or discussing whether collection could wait), this testimony does not show that defendant objected to the account that w as stated to her.

Because the trial court did not clearly err in making its fact ual finding that defendant was presented with an account, the next issue to be determined is w hether plaintiff could recover on an account-stated claim when he testified that there was never an explicit agreement regarding the exact amount owed by defendant to him. Plaintiff argues th at it is immaterial that there was never an agreement, either express or implied, regarding a spec ific amount because the presence of an account stated does not exclude inquiry into the rectitud e of the account. The Supreme Court in White , 25 Mich at 467-468, did hold that the conversion of an open a ccount to an account stated “does not necessar ily exclude all inquiry into t he rectitude of the account” and that the parties could still impeach the account “for fraud or mistake.” This Court similarly stated in Keywell & Rosenfeld , 254 Mich App at 332, that on remand for a trial on the plaint iff’s account-stated claim, the defendant was entitled to challenge c ertain items listed on the bills.

Plaintiff argues that the account stated in bills and demand l etters mistakenly included interest and a double-billing 2 but that these mistakes should not operate to defeat his accou ntstated claim because, by not objecting to the bills within a re asonable time, defendant impliedly agreed to pay the balance minus the parts of the bills that pla intiff admits were mistaken. Because the Supreme Court has held that during the resolution o f an account-stated claim, inquiry can be made for bills listed because of fraud or mistak e, plaintiff is correct—provided he could show at least an implied agreement by defendant that he c ould recover the agreed-to amount of the account, minus the amounts that were mistakenly i ncluded. There was indeed evidence that defendant impliedly assented to a sum by her fail ure to object to the amount of the

2 Plaintiff testified that the amount of $58.50 was listed twice and that he deleted one of these amounts because he was concerned that it could have been a doub le-billing.-4- account within a reasonable time when presented to her by bills and demand letter s from plaintiff such that the trial court corre ctly held that there was an acco unt stated.

Plaintiff testified on direct examination that on February 7, 2012, a bill was sent to defendant that included the previous balances from the December 8, 2006, bills as well as interest. Plaintiff also testified about demand letters being sent in February and May of 2012. Defendant never denied getting these letters or bills. Defenda nt’s failure to objec t to these letters or bills sent in 2012 within a reasonable time constituted her implied admission regarding their correctness. The fact that plaintiff acknowledged during litig ation that there were certain mistakes in the 2012 bill and letters is simply part of an allo wable inquiry into the rectitude of the account and does not defeat plaintiff’s claim. See id . at 332 n 23. Plaintiff acknowledged that there was not a point in time where defendant indicated th at she agreed to pay $56,603.09 (the total amount on the original 2012 bill). However, it is n ot required that plaintiff present specific evidence of defendant’s explicit agreement because the Supreme Court in Fisher , 494 Mich at 558-559, stated that a party’s assent can be inferred f rom inaction so as to form an implied contract. The trial court did not err in finding that plaintiff was “entitled to an award on his claim for an account s tated in the amount of $27,171.44.”

Given our resolution of this i ssue, we need not address the ad ditional issues raised on appeal.

Affirmed.

/s/ Cynthia Diane Stephens /s/ Henry William Saad /s/ Patrick M. Meter