-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

In re Estate of DOUGLAS W. BALTRIP.

KELLY COSBY, Personal Representative,

Petitioner-Appellee, UNPUBLISHED January 26, 2016

v No. 324154 Monroe Probate Court BRANDI BALTRIP, Personal Representative, LC No. 2011-000709-DE

Respondent-Appellant.

Before: R IORDAN , P.J., and J ANSEN and F ORT H OOD , JJ.

P ER C URIAM

.
Respondent, Brandi Baltrip, the personal representative of the estate of Douglas W. Baltrip (“decedent”), appeals as of right a probate court order appointing petitioner, Kelly Cosby, the special personal representative of the estate. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 17, 2011, decedent, who was 43 years old, was kill ed in an automobile accident allegedly involving alcohol. Most relevant to this ap peal, he was survived by his second wife, the respondent; the petitioner, his sister; his mi nor children, Colton and Emma Baltrip; and Kellie Skidmore Baltrip, his first wife and the mo ther of his children. 1

In December 2011, respondent was appointed personal representative of decedent’s estate. Several months later, decedent’s first wife (Kellie) f iled an emergency petition on behalf of Colton and Emma for the removal of respondent as personal re presentative, for the appointment of a special personal representative, and for other relief based on a series of claims not relevant to this appeal. In October 2012, respondent and K ellie, as the children’s conservator, entered into a sett lement agreement arising from K ellie’s petition. Most relevant to

1 In the interest of clarity, we will refer to respondent Brandi Baltrip as “respondent,” petitioner Kelly Cosby as “petitioner,” and the rest of the individuals bytheir first names in this opinion.-2- this appeal, the parties, in a writing, agreed that after the c onditions under the agreement were satisfied, neither party would ra ise any additional allegations against the other, and the minor
children—and Kellie as their cons ervator—would no longer have a ny interest in, or claim against, the estate or respondent as personal representative of the estate.

In June 2014, petitioner filed a petition for the appointment of a special personal representative and/or removal re spondent as personal representa tive of the estate. This is the petition at issue in this appeal. Petitioner asserted that she was an interested person with regard to decedent’s estate and sought appointment as a special person al representative in order to pursue a wrongful death action arising from decedent’s death, which would likely name respondent as a defendant based on allegations concerning respo ndent’s involvement in the
accident that caused decedent’s death. She also requested that the probate court remove respondent as personal representative and grant any other relie f appropriate under the
circumstances. 2

Respondent subsequently opposed petitioner’s petition on a var iety of grounds, including that (1) petitioner did not have an interest in the estate and, therefore, lacked standing to bring the petition, and (2) the petiti on was barred by the doctrine o f laches because petitioner was previously aware of Kellie’s investigation of a potential wrong ful death claim in 2012, which was found to be meritless, and the role of a potential wrongful death claim in settlement negotiations and the resulting settlement agreement between res pondent and Kellie in 2012.

After holding two hearings on the petition and providing an op portunity for the parties to provide supplemental briefs, th e probate court found that petit ioner was an inter ested person with regard to a wrongful death claim. The court also concluded that, under the circumstances of this case, respondent was unable to a ppropriately administer deceden t’s estate in connection with any potential tort action that the estate may assert against her. Accordingly, it held, pursuant to MCL 700.3614(b), that appointment of a special personal representat ive was necessary to ensure the proper administration of a poten tial wrongful death claim. How ever, the probate court denied the petition to appoint either petitioner or Kellie as a specia l personal representative of the estate. Instead, “[t]he [c]ourt, on its o wn motion, to ensure impartial ity and no real or perceived basis, appoint[ed] retired circuit Judge Michael W. LaBeau as a [s]pec ial [p]ersonal [r]epresentative of the [e]state,” for the limited purpose of investigating and pos sibly pursuing a wrongful death
action.

2 On August 13, 2014, Kellie filed a petition seeking the appoin tment of either herself or petitioner as special personal representative of decedent’s est ate in order to pursue a wrongful death action. In a supplemental brief, petitioner stated that she bought her petition jointly with Kellie for the appointment of a sp ecial personal representative pursuant to MCL 700.3614, as they both requested that the probate court appoint one or both of them as special personal representative of the estate for the purpose of investigating a nd possibly pursuing a wrongful death action against respondent and any other tortfeasors. How ever, the probate court denied Kellie’s petition, and it is not at issue in this appeal.-3- At a September 26, 2014 status conference, the court informed the parties that retired Judge LaBeau declined appointment as special personal represent ative. The court then reconsidered its previous decisi on and appointed petitioner as a special personal representative for the purpose of pursuing a wrongful death action.

II. STANDARDS OF REVIEW

We review de novo, as a question of law, the question of whethe r a party has standing to
assert a claim. In re Gerald L Pollack Trust , 309 Mich App 125, 154; 867 NW2d 884 (2015). Likewise, “[i]ssues of statutory construction present questions of law that this Court reviews de novo,” In re Temple Marital Trust , 278 Mich App 122, 128; 748 NW2d 265 (2008) (citations omitted), and we generally review de novo a court’s decision regard ing whether to apply an equitable doctrine, including laches, In re Filibeck Estate , 305 Mich App 550, 553; 853 NW2d 448 (2014); Knight v Northpointe Bank , 300 Mich App 109, 113; 832 NW2d 439 (2013).

However, “appeals from a probate court decision are on the reco rd, not de novo.” In re Temple Marital Trust , 278 Mich App at 128, 141-142, citing MCL 700.1305; MCL 600.86 6(1); MCR 5.802(B)(1). We review the probate court’s factual finding s for clear error and its dispositional rulings for an abuse of discretion. Id. at 128. A “court abuses its discretion when it
chooses an outcome outside the r ange of reasonable and principl ed outcomes.” Id

.
III. STANDING TO FILE A PETITION UNDER MCL 700.3614(b)

Respondent first argues that petitioner does not qualify as an “interested person” who has standing to file a petition for the appointment of a special pe rsonal representative under MCL 700.3614(b) because petitioner is not entitled to any proceeds from a wrongful death action and, as a result, does not “ha[ve] a property right in or claim agai nst . . . the estate of [the] decedent.” MCL 700.1105(c). Respondent’s claim that petitioner is not ent itled to any wrongful death proceeds is based on the fact that petitioner is not entitled t o any portion of decedent’s estate
under the laws of intestate su ccession, as decedent was survive d by his wife and children. See MCL 700.2103. Respondent’s argument has no merit.

This Court reiterated the following principles of statutory int erpretation in Book-Gilbert v Greenleaf , 302 Mich App 538, 541-542; 840 NW2d 743 (2013):

The judiciary’s objective when int erpreting a statute is to dis cern and give effect to the intent of the Legislature. First, the court examines th e most reliable evidence of the Legislature’s in tent, the language of the statu te itself. When construing statutory la nguage, [the court] must read the statut e as a whole and in its grammatical context, giving each and every word its plain and ordinary meaning unless otherwise defined. Effect must be given to ever y word, phrase, and clause in a statute, and the court must avoid a constructio n that would render part of the statute surplusage or nugatory. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Generally, when language is include d in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purpos ely in their inclusion or exclusion. T he courts may not-4- read into the statute a requirement that the Legislature has se en fit to omit. When the Legislature fails to address a concern in the statute with a specific provision, the courts cannot insert a provision simply because it would ha ve been wise of the Legislature to do so to effect the statute’s purpose. Statutes that address the same subject matter or share a common purpose are in pari materia and must be read collectively as one law, even when there is no reference to one another. . . . [Quotation marks and citations omitted; alteration in original. ]

The Estates and Protected Indi viduals Code (“EPIC”), MCL 700.11 01 et seq ., governs the administration of estates in Michigan and applies to the ap pointment of a special personal representative. See MCL 700.3614. A probate court’s decision to appoint a personal representative is discretionary. In re Kramek Estate , 268 Mich App 565, 575; 710 NW2d 753 (2005). In relevant pa rt, MCL 700.3614 provides:

A special personal representati ve may be appointed in any of the following
circumstances:

* * *

(b) By the court on its own motion or in a formal proceeding b y court order on the petition of an interested person if in either case, after n otice and hearing, the court finds that the appointment is necessary to preserve the e state or to secure its proper administration, including it s administration in circumst ances in which a general personal representative cannot or should not act. If i t appears to the court that an emergency exists, the court may order the appointment w ithout notice. [MCL 700.3614(b).]

“Interested person” is define d, for purposes of the EPIC, as fo llows:

(c) “Interested person” or “pers on interested in an estate” inc ludes, but is not limited to, the incumbent fiduciary; an heir, devisee, child, s pouse, creditor, and beneficiary and any other person that has a property right in o r claim against a trust estate or the estate of a decedent, ward, or protected in dividual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested pers on. Identification of intereste d persons may vary from time to time and shall be determined according to the part icular purposes of, and matter involved in, a proceeding, and by the supreme court rules. [MCL 700.1105(c).]

As an initial matter, it is significant to note that respondent ’s argument regarding petitioner’s standing is inconseque ntial, especially given that respondent herself claims in her brief on appeal that the probate court appointed petitioner as special personal representative on its own motion, not in response to the petition filed by petiti oner. While the record reveals that the probate court appointed peti tioner as a special personal re presentative upon reconsideration of its previous denial of peti tioner’s petition, not on its ownmotion, the probate court was, in fact, statutorily authorized to appoint a special personal repr esentative on its own motion if it concluded that such an appointment was necessary. MCL 700.3614 (b).-5- Nevertheless, we conclude that petitioner has standing under MC L 700.3614(b) as an interested person to file the pe tition at issue. The wrongful death act, MCL 600.2922, provides, in pertinent part, that the following individuals may be entitl ed to proceeds from a wrongful
death action:

(3) Subject to . . . MCL 700.2802 to 700.2805, the person or pe rsons who may be entitled to damages under this s ection shall be limited to any of the following who suffer damages and survive the deceased:

(a) The deceased’s spouse, child ren, descendants, parents, gran dparents, brothers and sisters, and, if none of these persons survive the deceased , then those persons to whom the estate of the deceased would pass under the laws of intestate
succession determined as of the date of death of the deceased. [MCL 600.2922(3)(a).]

In support of her posi tion, respondent relies on In re Renaud Estate , 202 Mich App 588, 589; 509 NW2d 858 (1993), in which this Court concluded that “i t was [not] the intent of the Legislature to create a class of recipients under subsection 3( a) of the wrongful death act that
would not also be entitled to tak e under our laws of intestacy. ” Id . 589-591. Likewise, this Court reiterated at the end of its opinion that “[i]t would not be proper to define any of the terms in § 2922(3)(a) of the wrongful d eath act without taking into a ccount the laws of intestate
succession.” Id . at 591.

Contrary to respondent’s claims, In re Renaud only dictates that the laws of intestate
succession shall be used to determine whether an individual fal ls under the categories delineated under MCL 600.2922(3). The Court’s conclusion and reasoning do es not require that an individual must actually be enti tled to inherit a portion of th e estate under the la ws of intestacy in order to be entitled to wrongful death proceeds as a spouse, ch ild, descendant, parent, grandparent, brother, or sister. See In re Renaud Estate , 202 Mich App at 589-591; see also Claim of Turner , 209 Mich App 66, 69; 530 NW2d 487 (1995), rev’d on other grou nds 454 Mich 863 (1997).

Moreover, respondent’s argument is contrary to the plain langua ge of MCL 600.2922(3)(a). See Book-Gilbert , 302 Mich App at 541-542. Subsect ion (3)(a) first delineates several categories of individua ls who may be entitled to wrongf ul death proceeds without qualification. It subsequently states that individuals entitle d to damages under the wrongful death act then should be determined by ascertaining to whom the estate actually passes under the
laws of intestate successiononly if none of the aforementioned categories of individuals survive the deceased. Given this differentiation, it appears that it i s only necessary to determine who actually takes under the laws of intestate succession if “[t]he deceased’s spouse, children, descendants, parents, grandparent s, brothers and s isters” all p redecease the decedent.

This conclusion is further confirmed by the language of MCL 60 0.2922(6), which governs the distribution of proceeds from a wrongful death acti on, and MCL 700.3924, which applies to the distribution of proceeds following the settlemen t of a wrongful death claim. Neither statute provides that individuals actually entitled to a portion of the estate under the laws
of intestate succession are the only individuals who may be ent itled to proceeds from a wrongful-6- death action. Instead, MC L 600.2922(6)(d) and MCL 700.3924(2)( d) both provide that a trial court shall enter an order distributing the proceeds to (1) the individuals designated under MCL 600.2922(3)(a) who suffered damages in an amount that is fair a nd equitable in light of the damages sustained by each person and (2) to the estate in an am ount that is fair and equitable based on the amount of damages sustained by the estate. See al so McTaggart v Lindsey , 202 Mich App 612, 615; 509 NW2d 881 (1993) (stating same).

Therefore, as sister of the decedent, there still was a possibi lity that petitioner could be entitled to damages under MCL 600.2922(3)(a). As such, petitio ner was an “interested person,” as defined under MCL 700.1105(c), and had standing to file a pe tition for the appointment of a special personal representative under MCL 700.3614(b) for the p urpose of pursuing a wrongful
death action.

Further, even if we assume, arguendo, that petitioner did not h ave standing to bring a petition for the appointment of a special personal representati ve under MCL 700.3614(b) because she was not entitled to a portion of the estate under t he laws of intestate succession, see MCL 700.2101; MCL 700.2103, the purported error is harmless und er the circumstances of this case. See MCR 2.613(A); Ypsilanti Fire Marshal v Kircher , 273 Mich App 496, 529; 730 NW2d 481 (2007) (“[A]ny error in this respect was not decisive to the outcome, and we will not reverse on the basis of harmless error.”), lv gtd in part 480 M ich 910 (2007). The probate court specifically stated that it was reconsidering its previous deci sion on its own moti on in light of the conclusions of retired Judge Labeau. Given the court’s stateme nts, it is apparent that it believed that the appointment of a special personal representative was n ecessary and in the best interests of the estate. As such, the probate court’s act of reconsiderin g its previous decision on petitioner’s petition was, in esse nce, equivalent to appointing a special personal representative on its own motion, as permitted under MCL 700.3614(b).

IV. DOCTRINE OF LACHES

Next, respondent argues that the petition should have been bar red by the doctrine of laches. We disagree.

Even if we accept, for the sake of argument, respondent’s clai ms regarding petitioner’s knowledge of a potential wrongful death claim in 2012, and the role of the potential wrongful death claim in the negotiations between respondent and Kellie w ith regard to the 2012 settlement agreement, respondent has failed to establish that the doctrine of laches bars the petition in this

case.

The doctrine of laches only is “ applicable in cases in which t here is an unexcused or unexplained delay in c ommencing an action and a corresponding c hange of material condition that results in prejudice to a party.” Pub Health Dep’t v Rivergate Manor , 452 Mich 495, 507; 550 NW2d 515 (1996); see also Tenneco Inc v Amerisure Mut Ins Co , 281 Mich App 429, 457; 761 NW2d 846 (2008) (“For laches to apply, inexcusable delay inbringing suit must have resulted in prejudice.”). Accordingly, the primary focus of la ches is “the effect of delay.” Lothian v City of Detroit , 414 Mich 160, 168; 324 NW2d 9 (1982) (quotation marks and cit ation omitted). “As a general rule, [w]here the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, th e defense of laches cannot * * * be-7- recognized.” Peabody v DiMeglio , 306 Mich App 397, 408; 856 NW2d 245 (2014) (quotation marks and citation omitted; alterations in original).

On appeal, respondent identifies two sources of prejudice aris ing from petitioner’s delay in filing the petition: (1) “afte r three years of being open, c ontinued administration [of the estate] is now required until resolution of the wrongful death lawsuit, ” and (2) “[respondent] wants nothing more than to close this chapter of her life and move on after the tragedy of losing her husband and undertaking the daunting task of administering his extremely complicated estate, and [petitioner’s] petition pr events her from doing so.”

Respondent’s assertion of prejudi ce based on her own desire to move on with her life following the loss of her husband conflates respondent’s positi on in the instant case. Respondent is not participating in this ap peal in an individual capacity; she is participating as the personal representative of decedent’s estate, meaning that her role in this case is to represent the best interests of the estate, not h er own interests. See MCL 700.12 12; MCL 700.3703(1); McTaggart , 202 Mich App at 617 (“The personal representative must use hi s authority in the
best interest of the estate and in the interests of the parties .”). Additionally, respondent, as personal representative, was granted the “chose of action” for a wrongful death claim under MCL 600.2922(2). In re Haque Estate , 237 Mich App 295, 309; 602 NW2d 622 (1999). Given her duty to represent the interests of the estate, her personal desire to close the estate and conclude this chapter of her life is not sufficient to demonstr ate prejudice to the estate as a result of petitioner’s delay. See Rivergate Manor , 452 Mich at 507.

Similarly, respondent’s assertion of prejudice based on contin ued administration of the estate is misplaced and reflects a misguided understanding of the interests of the estate. Under Michigan law, the right of action for the wrongful death of a d ecedent constitutes an asset of the
decedent’s estate. Grand Trunk W R Co v Kaplansky , 270 Mich 135, 151; 258 NW 423 (1935); Findlay v Chicago & G T R Co , 106 Mich 700, 702; 64 NW 732 (1895). See also In re Haque
Estate , 237 Mich App at 303 (holding “that a wrongful death cause of action constitutes ‘property of the decedent’ such that [the] decedent could be co nsidered to have had an ‘estate’ . . . that required administration”); In re Brown , 229 Mich App 496, 498; 582 NW2d 530 (1998) (stating that “a possible [wrongf ul death action] arising from the accident constituted the estate’s principal asset”); In re McDivitt Estate , 169 Mich App 435, 437; 425 NW2d 575 (1988). Accordingly, pursuing a viable wrongful death action is in the estate’s interest, as it is a means by which the estate’s assets may be increased. See In re Haque Estate , 237 Mich App at 309 (“[T]he wrongful death act speci fically provides that wrongful death proceeds may include recovery for expenses f or which a decedent’s estate is liable, including medical, hospital, funeral, and burial expenses. MCL 600.2922(6)[.] . . . Further, the es tate is eligible to receive damages for a decedent’s conscious pain and suffering before death, thu s increasing the value of the estate. MCL 600.2922(6)[.] . . .”). Cf. In re McDivitt Estate , 169 Mich App at 440 (“In this case, the mediation sanctions assessed against the estate in th e wrongful death action resulted from litigation that was undertaken to benefit the estate by in creasing its assets.”).

As such, it is not logical to assert prejudice on the basis of continued administration of
the estate when the reason for th e continued administration is the pursuit of an asset of the estate,

i.e. , a wrongful death claim which ha s the potential of increasing the value of the estate. Furthermore, there is no indication that the delay caused “ a corresponding change of material-8- condition that result[ed] in prejudice to” the estate, as continued admin istration is, by definition,
an extension of administra tion that already has been ongoing. See Rivergate Manor , 452 Mich at 507 (emphasis added).

Therefore, given respondent’s failure to demonstrate the requi site prejudice, we reject respondent’s argument that peti tioner’s petition is barred by the doctrine of laches.

V. FAILURE TO PROVIDE NOTICE AND A HEARING PRIOR TO APPOINTMEN T

Respondent next argues that the probate court abused its discr etion when it appointed petitioner as a special personal representative because it fail ed to provide notice and a hearing prior to the appointment, as required under MCL 700.3614(b). W e disagree.

A. STANDARD OF REVIEW

Because respondent did not assert that she did not receive noti ce or a hearing in the probate court, this issue is unpreserved. See Detroit Leasing Co v Detroit , 269 Mich App 233, 237; 713 NW2d 269 (2005). We review unpreserved issues for pla in error. Demski v Petlick

, 309 Mich App 404, 426-427; ___ NW2d ____ (2015). “Plain error occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings.” Duray Dev, LLC v Perrin , 288 Mich App 143, 150; 792 NW2d 749 (2010).

B. ANALYSIS

MCL 700.3614(b) requires that unless an emergency exists, a spe cial personal representative may be appointed “[b]y the court on its own moti on or in a formal proceeding by court order on the petition of an interested person” only after notice and a hearing are provided. Respondent characterizes the pr obate court’s appointment of pet itioner as an action taken “[b]y the court on its own motion” under MCL 700.3614(b). However, t he probate court expressly stated at the September 26, 2014 hearing and in its September 2 6, 2014 order that it was reconsidering , on its own motion, its September 18, 2014 opinion and order, under which it denied petitioner’s petition for the appointment of a special p ersonal representative for the purpose of pursuing a wrongful d eath action. Accordingly, give n the probate court’s statements on the record and corresponding order, it is apparent that its ultimate decision resulted from petitioner’s petition and was not on its own motion under MCL 7 00.3614(b).

While this distinction does not a ffect whether notice and a hea ring are required prior to the appointment of a special per sonal representative under MCL 700.3614(b), it is clear, given the procedural posture of the lo wer court proceedings, that the notice and hearing requirements were fulfilled prior to the appointment at issue, as notice and multiple hearings were provided with regard to petitioner’s petition. Likewise, respondent ack nowledges that a hearing on the petition was held on July 23, 2014, and oral arguments regardin g the petition were heard on September 4, 2014. Respondent also recognizes that she raised her concerns regarding petitioner’s appointment as a speci al personal representative i n her filings in response to the petition, at the hearings on the petition, and at the September 26, 2014 status conference. She
does not claim a lack of notice w ith regard to those hearings, and the record confirms that both she and her attorneys were pres ent at all of the hearings.-9- Yet, respondent claims that she was not given an opportunity to present evidence to corroborate her allegation that p etitioner was discharged by re spondent, in her capacity as personal representative, for mi sappropriating corporate funds d uring petitioner’s management of
one of decedent’s businesses. Ho wever, respondent had ample op portunity to present such evidence in her initial answer and supplemental response to pet itioner’s petition as well as at the hearings before the probate co urt on the petition, and she did not do so

.
Therefore, respondent has failed to establish a plain error aff ecting her substantial rights as to her claims regarding the lack of notice and a hearing. See Duray Dev, LLC v Perrin , 288 Mich App at 150.

VI. FAILURE TO DETERMINE P ETITIONER’S SUITABILITY
PRIOR TO APPOINTMENT

Finally, respondent contends that the probate court appointed petitioner as special personal representative without a prior finding that petitioner was a suitable appointee. We disagree.

Contrary to respondent’s claim, the probate court addressed—alb eit indirectly— respondent’s claim that petitione r was not suitable to serve as a special personal representative in light of respondent’s allegations . In particular, it acknowled ged respondent’s claims regarding petitioner’s strained relationship with respondent, which was r elated to respondent’s discharge of petitioner following her alleged misappropriation of funds. Ho wever, the court ultimately concluded that its decision to appoint petitioner as a special personal representative was in the
best interest of the estate.

Nonetheless, even if the court ar guably failed to specifically determine whether petitioner was a suitable special personal representative, respondent has failed to establish that reversal of the probate court’s de cision is warranted.

Respondent relies on MCL 700.3203(2) as the basis of her ability to object to petitioner’s appointment. MCL 700.3203(2) states, in relevant part, “An obj ection to the appointment of a personal representative may be made only in a formal proceeding .” The party objecting to the appointment of a particular indi vidual as a personal representative carries the bur den establishing the unsuitability of the individual. In re Estate of Hutton , 191 Mich App 292, 294; 477 NW2d 144 (1991) (considering an objection to the appointment of a pe rsonal representative under a similar provision of Michigan’ s former probate code), citing In re Abramovitz’ Estate, 278 Mich 271, 274; 270 NW 294 (1936) (establishing the b urden of proof i n light of statut ory provisions of priority similar to MCL 700.3203). The Legislature has not ide ntified the grounds that would support an objection to the appointment of a personal represent ative, but this Court has “conclude[d] that any ground which would justify the removal of a personal representative under MCL 700.3611(2) is equally sufficien t to support an interested person’s objection to the initial appointment of a personal rep resentative under MCL 700.3203(2). ” In re Estate of Stan , 301 Mich App 435, 446-447; 839 NW2d 498 (2013). For example, groun ds justifying removal include, inter alia , “that [r]emoval is in the best interests of the estate, MCL 7 00.3611(2)(a), that the personal representative has [m]ismanaged the estate, MCL 70 0.3611(2)(c)( iii ), and that the personal representative has [f]ailed to perform a duty pertaini ng to the office, MCL-10- 700.3611(2)(c)( iv ).” In re Estate of Stan , 301 Mich App at 446 (quotation marks omitted; alterations in original).

However, MCL 700.3615, not MCL 700.3203, governs who may be app ointed as a special personal representative. 3 Nevertheless, even if we assume, without deciding, that respondent was able to raise an objection as provided under MCL 700.3203(2), respondent is not
entitled to relief.

If the probate court concluded that petitioner had misappropri ated corporate funds with regard to one of decedent’s business, appointment of petitioner as a special personal representative arguably would ha ve been contrary to the best interests of the estate. See MCL 700.3611(2); In re Estate of Stan , 301 Mich App at 446. Respondent argues that the probate court’s failure to provide notice and a hearing on the matter p rior to the appointment prevented her from presenting evidence re levant to the alleged misappropr iation and whether petitioner was a suitable special personal representative. However, as explai ned supra , the court did provide notice and multiple hearings. Despite the fact that respondent was present and represented by counsel at two hearings on petitioner’s petition, and actually submitted two filings to the court in response to petitioner’s petiti on, respondent never presented a ny evidence regarding petitioner’s purported unsuitability, never re quested an additional hearing to offer evidence in support of her allegation concerning the misappropriation of corporate funds, nor ever filed a formal objection to petitioner’s appointment. Cf. In re Estate of Stan , 301 Mich App at 439-440, 445-448.

Further, it was not until the pr obate court issued its decisionto appoint petitioner as special personal representative on the record at the status con ference that respondent argued that petitioner’s alleged misappropriation of funds constituted a ba sis for finding that petitioner was unsuitable to serve as a fiduciary for the estate. Her previou s references to the alleged misappropriation of funds were offered in support her argument that petitioner was bringing the petition as a result of a pers onal vendetta against respondent due to respondent’s discharge of petitioner. At that time, she did not request an additional op portunity to present evidence in support of her allegations, nor di d she move for reconsideratio n of the probate court’s decision.

Accordingly, respondent fails to carry her burden of establishi ng the basis of her objection to petitioner’s appointme nt as a special personal rep resentative. See In re Abramovitz’

3 The Reporter’s Comments to the EPIC confirms this understandin g of the statutory scheme. “While not binding, the Reporter’s Comments to the EPIC aid in the interpretation of a statute or
rule.” In re Conservatorship of Bittner , ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 320688); slip op at 8 (quotation marks and citation omitted ). The commentary to MCL 700.3203 provides, in relevant part:
Sections 3203 and 3204 operate t ogether and must be read togeth er in many instances. They state the prio rities for appointment as genera l personal representative. They, [sic] do not apply, however, to the appo intment of a special personal representative under MCL 700.3614. [ Estates & Protected Individuals Code with Reporters’ Commentary (ICLE, 2015 ed), p 82.]-11- Estate , 278 Mich at 274; In re Estate of Hutton , 191 Mich App at 294. Therefore, even if the probate court arguably failed to consider petitioner’s suitabil ity prior to her appointment, the court’s failure to do so was harmless given the lack of evidenc e in the record which would support a finding that petitioner was unsuitable to serve as a special personal representative. See MCR 2.613(A); Ypsilanti Fire Marshal , 273 Mich App at 529.

VII. CONCLUSION

Respondent has failed to establish that reversal of the probate court’s order appointing petitioner as a special personal representative is appropriate in this case.

Affirmed.

/s/ Michael J. Riordan
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood