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### STATE OF MICHIGAN

COURT OF APPEALS

In re MARTHA ANN GRIMM, a protected person.

MARTHA ANN GRIMM, and ERIC C. GRIMM,

Appellants, UNPUBLISHED July 14, 2016

v No. 326240; 327012 Muskegon Probate Court P.W. SERVICES, INC., Su ccessor Conservator of MARTHA ANN GRIMM

, KIRSTEN GRIMM, TERESA STRATTON, MICHAEL GRIMM, AND MICHAEL WALSH, Guardian Ad Litem, LC No. 11-087628-CA; 11-087628-GA

Appellees.

Before: M URRAY , P.J., and S AWYER and M ETER , JJ.

P ER C URIAM

. In Docket Number 326240, Eric C. Grimm (“Eric”) and Martha Ann Grimm (“Martha”), appeal as of right an order granting the petition to sell real estate. In Docket Number 327012, Eric and Martha appeal as of right an order granting the conser vator’s petition to employ an attorney. We affirm both orders.

I. STATEMENT OF FACTS 1

Martha, a widow, suffers from “chronic mental illness” and dem entia. Because of her condition, Martha lived at her home in North Muskegon with her daughter 2 Kirsten Grimm

1 We take this opportunity to remind appellants that an appellat e brief must contain a statement of all material facts, both favorable and unfavorable, that is presented fairly without argument or bias . MCR 7.212(C)(6). Additionally, the statement of facts “must contain, specific page references to the transcript, the pleadings, or other document or paper filed with the trial court.” Id

.
2 Martha has four adult children; Eric, Kirsten Grimm, Michael G rimm, and Teresa Stratton.-2- (“Kirsten”) and Kirsten’s boyfrie nd, Gabriel Smith. At some po int, it was alleged that Kirsten and Smith made unapproved withdrawals of Martha’s funds. As a result of the allegations of wrong doing and a subsequent fall in her home, Martha moved in with Eric at his home in Roosevelt Park.

Eric, concerned about his mothe r’s financial affairs, petition ed the Muskegon Probate Court to appoint him as Martha’s conservator and the trial cour t subsequently appointed Michael Walsh as the lawyer-guardian ad litem for Martha. Walsh recomm ended the appointment of Eric, and after a hearing on Eric’s petition, the trial court a ppointed Eric as Marth a’s conservator.

In September 2014, the interested parties stipulated that the North Muskegon home was to be listed for sale no later than December 31, 2014. Thereaf ter, Eric, because he was too emotionally invested to provide assistance in Martha’s best int erest, was subsequently removed as the conservator and the trial court appointed P.W. Services (PWS) as Martha’ s conservator. PWS received the letters of authority appointing it as conserva tor eight days before the North Muskegon house was to be listed for sale. Acting quickly, PWS listed the house with Lucille Bulthouse, the real estate agent PWS traditionally used when in volved in probate matters, instead of using a listing negotiated by Eric with Vivian Keene. Never theless, PWS offered a co-listing with Keene.

Two days after listing the house for sale, PWS received an off er to purchase the North Muskegon home for the listed price, and petitioned the court to approve the sale of the property. Eric objected to the sale of the North Muskegon home, arguing t hat the house should not be sold because Martha may need to live at the North Muskegon home beca use Eric planned on selling his home and moving elsewhere. Eric also objected to the sal e of the home because the price was too low. The trial court, over Eric’s objections, determin ed that the sale of the house was in the best interest of Martha and entered an order granting PWS’s petition to sell the house. Eric then appealed this order to our Court.

Because Eric appealed the order, PWS petitioned the court to e mploy an attorney to defend the appeal. Eric opposed the conservator’s motion to em ploy an attorney by arguing that PWS should not be allowed to hire an attorney because, accordin g to Eric, MCR 7.219 allows this Court to shift costs and attorney fees in a manner deemed appropriate. Martha also filed a motion in opposition to the petition of PWS to employ an attorn ey, arguing that she was capable of selecting her own attorney a nd choosing who she wanted to re present her. Martha also did not want to waste any money on an atto rney who she did not select.

At a hearing on the motion, PWS argued that EPIC authorizes th e hiring of an attorney to defend actions. The trial court agreed and granted PWS’s petit ion to employ an attorney for purposes of Eric’s appeal. The trial court entered an order gr anting PW’s petition and ordered that the Estate of Martha Grimm pay the attorney’s fees related to Eric’s appeal. Eric and Martha then appealed this order to our Court. This Court then consolidated the two appeals to advance the efficient administ ration of the appellate process. In re Martha Ann Grimm
, unpublished order of the Court of Appeals, entered May 14, 2015 (Docket Nos. 326240; 327012).

II. DOCKET NO. 326240-3- A. MARTHA’S BEST INTEREST

Eric and Martha first argue tha t the trial court erred in find ing that the sale of the home was in Martha’s best interest. 3 A trial court’s factual findings are reviewed for clear error

. City of Detroit v Ambassador Bridge Co , 481 Mich 29, 35; 748 NW2d 221 (2008). A finding is clearly erroneous when the review ing court is left with a defin ite and firm conviction that a mistake has been made. Id

. Pursuant to MCL 700.5423(3), “[a] conservator shall not sell o r otherwise dispose of the protected individual’s . . . r eal property . . . without approv al of the court.” “The court shall only approve the sale . . . if, after a hearing with notice to inter ested persons as specified in the Michigan court rules, the court considers evidence of the value of the property and otherwise determines that the sale . . . is in the protected individual’s best interest.” Id

. The trial court’s finding that the sale of the home was in Martha’s best interest is not clearly erroneous. Evidence was presented that the house was b uilt in the 1940s (if not before then) and that substantial work was needed to make the home hab itable. Specifically, testimony was elicited from Larry Rottman, a real estate appraiser, that an additional $8,000 to $10,000 would be required to be spent on repairs to make the home habit able. The repairs required were (1) the windows needed to be replaced (which would have cost “s everal thousand dollars”), (2) new hardwood floors needed to be installed in one of the bedroo ms, (3) a new ceiling fan needed to be added in the bathroom and (4) the rotten window sills nee ded to be replaced. In addition, water damage in the kitchen needed to be addressed. With regar d to the value of the home, Bulthouse and Keene provided PWS with a recommended listing pri ce of $99,900 after inspecting the house together. R achel Cereska of PWS opined th at it was in the best interest of Martha to sell the house to Michael and Cori Fris for $99,900. Therefore, there was competent evidence to support the trial court’s factual finding.

Eric and Martha argue that the sale of the home was not in Mar tha’s best interest because the seller’s and buyer’s agent wo rked for the same real estate brokerage firm, ReMax Muskegon, which made ReMax Muskegon a dual agent. See MCL 339.2517. 4 While such a dual agency

3 We reject appellees argument th at this issue is moot. As a ge neral rule, an appellate court will not decide moot issues. B P 7 v Bureau of State Lottery , 231 Mich App 356, 359; 586 NW2d 117 (1998). An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief. Id . While the house was sold to a third party prior to this appe al, there is still meaningful relief available because Eric and Martha are seeking monetary damages. Specifically, Eric and Martha are seeking $20,000 in damages, t he difference between the amount Eric believes the house is worth and the amount the hous e actually sold for. Thus, the issue is not moot.

4 Such a dual agency relationship is permissible by statute. Wh en agents from the same real estate brokerage represent different parties in a real estate t ransaction, the brokerage is considered a disclosed consensual dual agent. MCL 339.2517(7). Importantly, the buyer’s and seller’s agents are not consid ered dual agents. MCL 339.2517(8 ). The real estate agents are,-4- relationship could be an important factor in determining whethe r the sale of the home was in Martha’s best interest, that fact alone does not render erroneo us the trial court’s factual finding that the sale of the North Muske gon home was in Martha’s best i nterest. As discussed above, there was ample evidence to suppor t the trial court’s factual f inding.

B. PRESUMPTIVELY VOIDABLE SALE

Eric and Martha argue that the sale of the North Muskegon home is presumptively voidable under MCL 700.5421. This argument was not “raised, ad dressed, and decided by the lower court,” and, as such, it is unpreserved for appellate rev iew. Mouzon v Achievable Visions
, 308 Mich App 415, 419; 864 NW2d 606 (2014). “This Court will g enerally decline to address unpreserved issues unless a miscarriage of justice will result from a failure to pass on them, . . . the question is one of law and all the facts necessary for its resolution have been presented, or [it is] necessary for a proper determination of the case.” Autodie, LLC v City of Grand Rapids , 305 Mich App 423, 431; 852 NW2d 650 (2014) (quotation marks and cit ation omitted). We will address the issue because the necessary facts have been present ed, however, our review is limited to plain error affecting substantial rights. Kern v Blethen-Coluni , 240 Mich App 333, 336; 612 NW2d 838 (2000). “To avoid forfe iture under the plain-error ru le, three requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected s ubstantial rights.” Id

. MCL 700.5421 provides:

(2) A sale, encumbrance, or othe r transaction involving the in vestment or management of estate property is presumed to be affected by a c onflict between personal and fiduciary interests if it is entered into by the c onservator with any of the following:

(a) The conservator’s spouse.

(b) The conservator’s descendant, sibling, or parent or the spo use of the conservator's descendant, sibling, or parent.

(c) An agent or attorne y of the conservator.

(d) A corporation or other person or enterprise in which the co nservator, or a person that owns a significant in terest in the conservator, has an interest that might affect the conserva tor’s best judgment.

This transaction is not presumptively voidable because the sale of the North Muskegon house was not entered into by PWS and PWS’s spouse, descendant, sibling, or parent or the spouse of the conservator’s descendant, sibling, or parent. Inaddition, the sale of the home was not made between PWS and one of it s agents or attorneys, or a c orporation or enter prise in which PWS had an interest that might affect its best judgment. The t ransaction was entered into
however, required to inform their clients that the brokerage re presents both the buyer and seller. Id . Here, PWS consented to dual repr esentation when it signed th e listing agreement.-5- between PWS and Michael and Cori Fris, neutral third parties no t associated in anyway with PWS. Thus, the transaction was not presumptively voidable and no error occurred.

C. STATUTORILY REQUIRED NOTIC E OF AGENCY RELATIONSHIPS

Eric and Martha next argue tha t Bulthouse and Keene failed to disclose to Martha all types of agency relationships, in violation of MCL 339.2517. B ecause it is being raised for the first time on appeal, the issue is unpreserved, Mouzon , 308 Mich App at 419, and will be reviewed for plain error. Kern , 240 Mich App at 336.

MCL 339.2517(1) provides:

A licensee shall disclose to a potential buyer or seller in a r eal estate transaction all types of agency relationships available and the licensee’s duties that each agency relationship creates befo re the disclosure by the potent ial buyer or seller to the licensee of any confidential information specific to that p otential buyer or seller.

The disclosure required by MCL 339.2517(1) must be in writing a nd substantially conform to the language in MCL 339.2517(3). MCL 339.2517(3).

Despite Eric and Martha’s contention, Bulthouse and Keene were not required to disclose to Martha the types of agency relationships as she was not the seller of the home. The appointment of a conservator vest s in the conservator title as trustee to all of the protected individual’s property. MCL 700.5419(1). The protected individ ual’s interest in property is not transferable or assignable by the protected individual. MCL 70 0.5419(2). As such, Martha was not the seller of the home as she was unable to transfer her ri ghts in the home to another party. Rather, PWS, with vested title as trustee, was the seller of th e home and PWS, in fact, received a disclosure which substantially c onformed to the language in MCL 339.2517(3). Therefore, Eric and Martha are unable to de monstrate plain error.

D. CONSERVATOR’S DUTY TO I NFORM INTERESTED PARTIES

Eric and Martha also contend, for the first time on appeal, th at PWS failed to keep informed the interested parties of the sale of the North Muskeg on home. This unpreserved claim of error is reviewed for clear error affecting substantial righ ts. Veltman v Detroit Edison Co , 261 Mich App 685, 690; 683 NW2d 707 (2004).

A conservator owes a fiduciary duty to the protected individua l and the conservator shall observe the standard of care applicable to a trustee. MCL 700. 5416. As it relates to nonroutine transactions, like the sale of real estate, a conservator “must inform [the interested parties] of all material facts . . . which significantly affects the [estate] . . . prior to the transaction taking place.” Matter of Green Charitable Trust , 172 Mich App 298, 316; 431 NW2d 492 (1988). Stated differently, the interested parties have a right to know of an offer prior to the sale. Id

. Here, PWS notified Martha and the interested parties of the mat erial facts prior to the transaction taking place. PWS filed a petiti on to sell the North Muskegon home, indicating that Michael and Cori Fris were to purchase the house for $99,900 in cash with a six percent commission to the realtors. Attached to the petition to sell was the listing agr eement, which indicated the material-6- facts surrounding the agreement between PWS and Keene and Bulth ouse i.e., the amount the house was listed for and the com mission of the realtors. Moreo ver, a hearing was held to determine whether the North Muskegon home should be sold, thus informing the interested parties of an offer prior to the sale of the home. Thus, Marth a and the interested parties were notified of the material facts in connection to the sale of the North Muskegon home prior to the transaction taking place.

E. CONSERVATOR’S DUTY TO O BTAIN BEST POSSIBLE PRICE

In the context of a sale of real estate, a conservator has a d uty to obtain the highest price. Matter of Green Charitable Trust , 172 Mich App at 316. The trial court found that PWS did not breach its duty to obtain the best possible price. In making t his finding, the trial court determined that PWS utilized reasonable judgment and reached th e ultimate decision of what the listing price should be based on the information it had before it. Eric and Martha take issue with the trial court’s factual fi nding, asserting that it was clearl y erroneous.
“The duty to obtain the best price . . . specifically include[ s] consideration of . . . [1] the determination of fair market value, [2] the proper marketing of the property, and [3] the adequacy of the price obtained.” Id . Determination of the fair market value requires a “s ound” appraisal, or in the absence of an appraisal, the conservator m ay establish value by “testing the market.” Id . at 317-318. “Testing the market” includes organized efforts that would reasonably take the place of a s ound and thorough appraisal. Id . at 318.

Here, because the house was to be listed within approximately one week of PWS receiving its letters of authority, it did not have adequate ti me to perform an independent appraisal. However, PWS adequately tested the market. Again, given the time constraints, PWS recommended that Bulthouse and Keene walk through the house and reach a consensus on the listing price of the house. After walking through the house, B ulthouse informed PWS that the two real estate agents agreed t hat the house should be listed a t $99,900. By establishing an appropriate listing price with two local realtors, PWS utilized organized efforts that reasonably took the place of a sound a nd thorough appraisal.

Second, PWS properly marketed the house.

Marketing means taking action to bring the property’s availabil ity to the attention of a wide spectrum of potential purchasers. There is no one se t method of marketing, rather the cases indicate that all the circumstances surrounding the sale are considered to determine adequacy. . . . [W]hat we are looki ng for is a reasonably aggressive program which men of prudence and intelli gence would have followed. Factors which h ave been considered include adve rtisement in appropriate publications, contac t with local developers, listin g with a local broker, use of “For Sale” signs, showing the property to prospective cu stomers, consultation with local sources on whether the offer price was the best offer obtainable, canvassing for possi ble purchasers, wide circulatio n of brochures and taking advantage of events—su ch as free publicity—to give notic e of the sale. [ Id

. at 320-321 (quotation marks a nd citations omitted).]-7- While there is not much record e vidence indicating what action s were taken with regard to marketing the property, PWS listed the home with not just on e agent, but two. PWS listed the property with Bulthouse, PWS’s regular realtor, and with Keene, the realtor of Eric’s choice. Furthermore, the fact that an offer was made two days after the listing agreement was signed indicates PWS took action to bring the property’s “availability to the attention of a wide spectrum of potential purchasers.” Id . at 319. All the circumstances surrounding the short amount of time the house was listed on the market indicates tha t the price included the proper marketing of the property.

The third area considered by PW S was the adequacy of the price obtained. In determining whether the price obtained was adequate, the “range of activities and surrounding circumstances are examined to see if the [conservator] took ste ps to understand the value and qualities of the property, as well as the nature of the market, and then took appropriate steps to secure the maximum price available.” Id . at 321.

The conservator, PWS, took steps to understand the value and q ualities of the property. Keene provided PWS with a market analysis that recommended a li sting price of $95,650. Then, Bulthouse and Keene both walked through the North Muskegon home , which had been uninhabitable since 2012, prior to listing the house for sale and recommended a listing price of $99,900. PWS ultimately accepted Michael and Cori Fris’s cash offer of $99,900, securing the listed price of the house. Havi ng considered the fair market v alue, the proper marketing of the property, and the adequacy of the price obtained, the trial court’s factual finding that PWS did not breach the duty to obtain the highest price possible was no t clearly erroneous.

F. GUARDIAN AD LITEM’S DUTY TO P ROTECT THE RIGHT S OF THE PROTE CTED INDIVIDUAL

Eric and Martha next argue that Walsh, as guardian ad litem, f ailed to protect the rights of Martha. This issue was not advanced in the trial court, thus i t is not properly preserved for review, making review limited to plain error affecting substant ial rights. Kern , 240 Mich App at 336.

A guardian ad litem has the duty t o protect the rights of the protected individual. Cohen v Home Life Ins Co , 273 Mich 469, 478; 263 NW2d 857 (1935). Eric and Martha argu e that Walsh breached this duty when Walsh began advocating for the sa le of the home because it was not in the best interest of Martha. Despite Eric’s opinion reg arding the sale of the North Muskegon property, Walsh believed it was in Martha’s best inter est to sell the home, particularly because the home was uninhabitable, unsafe, and a drain on the estate property. Thus, in selling the North Muskegon home, Walsh was trying to protect Martha’s e state by reducing the amount of money that was spent on the house and by increasing the cash in her estate. Based on these same facts, the trial court agreed with Walsh that selling the house was in Martha’s best interest. Although Eric had a difference of opinion regarding what was in Martha’s best interest, Walsh adequately protected the rights of Martha when representing her in the lower court proceedings.

G. ABANDONED ISSUES-8- Eric and Martha assert that a c onservator has a duty to minimi ze professional service fees and that the trial court failed to provide “effective oversight .” In doing so, they fail to cite to the lower court record or any supporting legal authority for their position. “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, or unravel and elaborate for him his arguments, and then search for authority either to sustain or r eject his position. The appellant himself must first adequately prime the pump; only then does th e appellate well begin to flow.” Mudge v Macomb Co , 458 Mich 87, 105; 580 NW2d 845 (1998). As a result of Eric a nd Martha’s failure to adequately b rief their position, they have abandoned these issues. Prince v MacDonald , 237 Mich App 186, 197; 602 NW2d 834 (1999).

III. DOCKET NO. 327012

A. APPELLATE JURISDICTION

Before addressing the substance of Eric and Martha’s appeal in Docket No. 327012, appellees contend that this Court does not have jurisdiction to hear Eric and Martha’s appeal. Whether an appellate court has jurisdiction to hear an appeal i s an issue reviewed de novo. Wardell v Hincka , 297 Mich App 127, 131; 822 NW2d 278 (2012). This Court has j urisdiction of an appeal of right if the order appealed from is a final ord er. MCR 7.203(A). An order granting or denying a petition for instructions is considered a final order. MCR 5.801(B)(2)(cc). Here, PWS petitioned the trial court to employ an attorney (although it was not required to, see MCL 700.5423(2)). PWS filed the petition to ensure that PWS co uld, in fact, hire an attorney to defend Eric and Martha’s appeal. Stated differently, PWS petiti on was essentially a petition for instruction from the trial cour t. Accordingly, the order is an order granting a petition for instructions, which is appealab le as of right. MCR 5.801(B)(2) (cc). We have jurisdiction to hear this appeal.

B. CONSERVATOR’S ABILITY TO EMPLOY AN ATTORNEY

Eric and Martha argue that the trial court impermissibly shift ed costs and attorney fees of the appeal to Martha before the appeal was resolved when it gra nted PWS petition to employ an attorney. Issues of statutory i nterpretation are a question of law that is reviewed de novo. In re Complaint of Rovas Against SBC Michigan , 482 Mich 90, 102; 754 NW2d 259 (2008).

In the instant case, the trial court was not shifting fees pur suant to MCR 7.219. Rather, the trial court was approving PW S’s request to employ an attorn ey to defend Eric and Martha’s appeal. Under MCL 700.5423, a conservator may employ an attorn ey for the benefit of a conservator. Specifically, MCL 700.5423(2) provides:

(2) Acting reasonably in an effort to accomplish the purpose o f the appointment and without court authorization or confirmation, a conservator may do any of the following:

* * *

(z) Employ an attorney to perform necessary legal services or t o advise or assist the conservator in the performan ce of the conservator's adminis trative duties, even-9- if the attorney is associated wit h the conservator, and act without independent investigation upon the attorney ’s recommendation. An attorney e mployed under this subdivision shall receive reasonable compensation for his or her employment.

(aa) Prosecute or defend an action, claim, or proceeding in any jurisdiction for the protection of estate property and of the conservator in the per formance of a fiduciary duty. [MCL 700.5423(2).]

Here, the trial court provided instruction that PWS could hire an attorney to defend Eric’s appeal because defending the appeal was a necessary legal service. Th us, the trial court had the authority to authorize the empl oyment of a lawyer to be paid re asonable compensation.

C. REPLY BRIEF

Finally, Eric and Martha’s arguments that (1) we should refer the trial judge to the judicial tenure commission and (2) Walsh’s appointment as guard ian ad litem was invalid are not properly before this Court. Eric and Martha first raised these issues in their reply brief. Reply briefs must be limited to rebuttal of the arguments in the appe llees’ brief. MCR 7.212(G); See also Kinder Morgan Michigan v City of Jackson , 277 Mich App 159, 174; 744 NW2d 184 (2007). Raising an issue for the first time in a reply brief i s not typically suffici ent to present the issue for appeal. Bronson Methodist Hosp v Mich igan Assigned Claims Facility , 298 Mich App 192, 199; 826 NW2d 197 (2012).

We affirm the orders in both docket numbers. Appellees may ta x costs, having prevailed in full. MCR 7.219(A).

/s/ Christopher M. Murray /s/ David H. Sawyer /s/ Patrick M. Meter