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### STATE OF MICHIGAN

COURT OF APPEALS

In re Estate of HELEN M. PAYEA.

NORMAN C. PAYEA II,

Petitioner-Appellant, UNPUBLISHED April 12, 2016

v No. 325391
Iosco Probate Court GEORGE R. PHILLIPS, Pers onal Representative of the Estate of HELEN M. PAYEA, LC No. 12-002605-DA

Respondent-Appellee,
and

RICHARD P. PAYEA,

Appellee.

Before: B OONSTRA , P.J., and W ILDER and M ETER , JJ.

P ER C URIAM

.
Appellant appeals as of right from an order of the probate cou rt denying his petition to compel return of funds and to appoint him as special personal r epresentative of the decedent’s
estate. We affirm.

Appellant and appellee Richard P ayea are the sons of the deced ent, who died on January 4, 2011. The decedent’s will named them co-personal representa tives of the estate. On November 27, 2012, appellant was appointed the personal represe ntative of the estate. Thereafter, appellee Payea filed three petitions seeking remova l of appellant as personal representative, probate of the decedent’s will, and supervised administration. On May 9, 2013, appellant and appellee Payea stipulated to an order admitting t he will to probate, adjourning appellee Payea’s petitions indefi nitely, and allowing appellant to continue as personal representative of the estate. S ubsequently, appellee Payea ren ewed his petition to remove appellant as the personal repr esentative. Appellant was remove d, and appellee George Phillips was appointed as the new personal representative. On November 3, 2014, appellant filed his petition to compel return of funds , which the probate court den ied.-2- Appellant argues that the probate court improperly ruled on hi s petition to compel return of funds at a pretrial hearing, without giving him proper notic e. Appellant did not raise this issue below, so review is for plain er ror affecting substantial right s. In re Utrera , 281 Mich App 1, 8; 761 NW2d 253 (2008).

During the pretrial hearing on November 17, 2014, appellant, t hrough his attorney, initiated the discussion on his petition to compel the return o f funds. Counsel argued that the limitations period was going to exp ire on December 17 and that he needed to have appellant appointed as a special representa tive in order to bring the cla im. Counsel stated that appellant would be “a special plaintiff” and “he’s the only logical perso n to bring [the claim].” Counsel stated that “[s]omething has to be done before . . . December 1 7, either what’s been done has to be ratified and affirmed for that purpose, or something needs t o be re-filed and then [appellant], either [appellant] is appointed as special P.R. for limited pur poses of bringing this claim, or he’s not. If he’s not, then I think i t’s over.” The following was stated:

The court : . . . I guess where we’re at right now, [appellant’s attorne y is] asking me to make some sort of decision on, I guess it would be on the petition to compel the return of assets a nd the undue influence claim. Whi ch invokes the, or
creates within it a statute of limitations issue.

* * *

The court : [Counsel], . . . are you asking me for, I guess, what are you asking me, the court regarding the petition?

Appellant’s attorney : Two things basically. One[,] recognize [appellant] as the real party and [sic] interest on this claim and appoint him special fiduciary for the sole purpose of bringing the claim. And two, recognize the petition that has already been filed as satisfying or tolling the statute of limitations, which then precludes us having to repackag e it, re-file it and everybody h aving to re-answer it. With that, [appellant] ca n have his day in court on Januar y 28.

The attorney was pressing the court to make a decision on the petition he had filed, despite the fact, as appellant notes in his appellate brief, th at the hearing was scheduled as a “pretrial conference.” The court proceeded to make that decisi on, stating that it would not appoint appellant a personal representative “for the purposes o f chasing this claim . . . .” When asked at the end of the hearing if he had “[a]nything else,” co unsel replied, “[n]o thanks.” Essentially, counsel asked for a ruling and it got that ruling. “[E]rror requiring reversal may only be predicated on the trial cour t’s actions and not upon alleged error to which the aggrieved party contributed by plan or negligence.” Lewis v LeGrow , 258 Mich App 175, 210; 670 NW2d 675 (2003). Accordingly, we find no basis for reversal.

For this same reason we reject appellant’s argument that he wa s denied the opportunity to pursue his claim through an evide ntiary hearing when the court ruled at the pretrial hearing.

Appellant also argues that the probate court improperly dismis sed his petition because he filed his witness and exhibit lists three days late. Appellant ’s argument is misplaced because,-3- while the trial court mentioned an “ arguably tardy witness list” (emphasis added) during arguments and in its written rul ing made an unclear reference t o appellant’s “failure to follow the [s]cheduling [o]rder,” 1 the trial court simply did not state that it was dismissing th e petition because of the late filing of the lists. The trial court’s wri tten order stated that the petition was
denied “for reasons stated on the record . . . .” The court st ated the following in dismissing appellant’s petition:

I think the personal representative has done an extremely prof essional job in gathering and marshalling the assets and doing things that n eed to be done. Has provided benefit to both of the Payea brothers and it does not seem that either
one would be inclined to do that for the other. And as far as the statute of limitations goes the court is not inclined to toll that. I thi nk that the parties have had ample time to bring their claims and settle their scores an d as I stated at our last hearing this matter needs to be resolved and therefore the petition is denied and the appointment of Norman is denied. I think the laches ar gument, even though we didn’t get into it toda y[,] certainly applies to some body who served as personal representative for the l ength of time that Norman did. . . . I’m not going to grant the petition or appoint Norman special personal repres entative for the purposes of chasing this claim, which the person that I think h as the best grip on the facts and the assets and who has done a really remarkable j ob as personal representative indicates to me t hat he doesn’t believe it’s in the best interest of the estate. Therefore, it’s denied.

Appellant’s argument is unavailing. 2

1 We note that the scheduling order encompassed items other than witness lists; for example, it stated that claims regarding t he estate were to be filed by Nov ember 3, 2014.

2 At any rate, we note that, in the relevant scheduling order, t he court ordered the parties to file
their witness and exhibit lists by November 3, 2014. It also o rdered that witness lists contain “names, addresses, phone numbers, and a summary of the testimon y in sufficient detail so as to provide sufficient detail to the other party . . . .” Appellan t did not file his witness list or exhibit list until November 6, 2014. The witness list specifically ide ntified 29 persons, but only provided addresses for 11 of them and phone numbers for nine (i ncluding both appellant and appellee Payea). In addition, th e witness list was devoid of a ny summary of the witnesses’ proposed testimony, leaving appellee s in the position of having to guess what they might offer of
relevance.

Further, appellant’s amended witness list also omitted address es and phone numbers for 15 of the 25 specifically listed witnesses. As for summaries o f the proposed testimony, the
summaries of 14 of the 25 witnesses were set forth largely in t he following generic format:

. . . testimony will support Petitioner’s allegations of Deced ent’s condition prior to her death, that Richard Payea was in a fiduciary relat ionship with the-4- Appellant argues that the court erred in ruling that his petit ion be dismissed because of his failure to bring his petition during his tenure as personal representative. Appellant emphasizes that he was only the personal representative for 8 1 /2 months. “This Court reviews the probate court’s factual findi ngs for clear error and its di spositional rulings for an abuse of
discretion. In re Lundy Estate , 291 Mich App 347, 352; 804 NW2d 773 (2011). It is true that the court noted that “the laches argument . . . certainly appli es to somebody who served as personal representative for the length of time Norman did.” Ho wever, this statement must be read in context. What appellee Phillips argued before the cour t’s ruling was that appellant had failed to raise his claim until almost four years following the decedent’s death. “Now if this was a real claim,” he argued, “where they had real something [sic] to be concerned a bout, why wasn’t this done in the first year, or the second year, or even the th ird year? But now, it’s almost four years and we’re talking about a last minute [effort].” Thus, t he court was essentially noting appellant’s tenure as personal re presentative in the context of the 22 months that had passed before he was appointed. Once again, we find no basis for reve rsal.

Affirmed.

/s/ Mark T. Boonstra
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter

Decedent, and that Richard recei ved certain financial benefits from the Decedent and property of the Estate whic h form the basis of Petitioner’s claims of undue
influence and conversion.