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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UNPUBLISHED 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, Personal Representative 

of the Estate of HELEN M. PAYEA, 

LC No. 12-002605-DA 

 Respondent-Appellee, 

and 

RICHARD P. PAYEA, 

 Appellee. 

Before: BOONSTRA, P.J., and WILDER and METER, JJ. 

PER CURIAM. 

 Appellant appeals as of right from an order of the probate court denying his petition to 

compel return of funds and to appoint him as special personal representative of the decedent’s 

estate. We affirm. 

 Appellant and appellee Richard Payea are the sons of the decedent, who died on January 

4, 2011. The decedent’s will named them co-personal representatives of the estate. On 

November 27, 2012, appellant was appointed the personal representative of the estate. 

Thereafter, appellee Payea filed three petitions seeking removal 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 the will to probate, adjourning 

appellee Payea’s petitions indefinitely, and allowing appellant to continue as personal 

representative of the estate. Subsequently, appellee Payea renewed his petition to remove 

appellant as the personal representative. Appellant was removed, 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 denied. 
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 Appellant argues that the probate court improperly ruled on his petition to compel return 

of funds at a pretrial hearing, without giving him proper notice. Appellant did not raise this issue 

below, so review is for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 

761 NW2d 253 (2008). 

 During the pretrial hearing on November 17, 2014, appellant, through his attorney, 

initiated the discussion on his petition to compel the return of funds. Counsel argued that the 

limitations period was going to expire on December 17 and that he needed to have appellant 

appointed as a special representative in order to bring the claim. Counsel stated that appellant 

would be “a special plaintiff” and “he’s the only logical person to bring [the claim].” Counsel 

stated that “[s]omething has to be done before . . . December 17, either what’s been done has to 

be ratified and affirmed for that purpose, or something needs to be re-filed and then [appellant], 

either [appellant] is appointed as special P.R. for limited purposes of bringing this claim, or he’s 

not. If he’s not, then I think it’s over.” The following was stated: 

The court: . . . I guess where we’re at right now, [appellant’s attorney is] 

asking me to make some sort of decision on, I guess it would be on the petition to 

compel the return of assets and the undue influence claim. Which 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 repackage it, re-file it and everybody having to re-answer 

it. With that, [appellant] can have his day in court on January 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, that the hearing was scheduled as a 

“pretrial conference.” The court proceeded to make that decision, stating that it would not 

appoint appellant a personal representative “for the purposes of chasing this claim . . . .” When 

asked at the end of the hearing if he had “[a]nything else,” counsel 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 court’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 was denied the opportunity to 

pursue his claim through an evidentiary hearing when the court ruled at the pretrial hearing. 

 Appellant also argues that the probate court improperly dismissed his petition because he 

filed his witness and exhibit lists three days late. Appellant’s argument is misplaced because, 
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while the trial court mentioned an “arguably tardy witness list” (emphasis added) during 

arguments and in its written ruling made an unclear reference to appellant’s “failure to follow the 

[s]cheduling [o]rder,”1 the trial court simply did not state that it was dismissing the petition 

because of the late filing of the lists. The trial court’s written order stated that the petition was 

denied “for reasons stated on the record . . . .” The court stated the following in dismissing 

appellant’s petition: 

 I think the personal representative has done an extremely professional job 

in gathering and marshalling the assets and doing things that need 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 think that the parties have 

had ample time to bring their claims and settle their scores and 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 argument, even 

though we didn’t get into it today[,] certainly applies to somebody who served as 

personal representative for the length of time that Norman did. . . . I’m not going 

to grant the petition or appoint Norman special personal representative for the 

purposes of chasing this claim, which the person that I think has the best grip on 

the facts and the assets and who has done a really remarkable job as personal 

representative indicates to me that 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 the estate were to be filed by November 3, 2014. 

2

 At any rate, we note that, in the relevant scheduling order, the court ordered the parties to file 

their witness and exhibit lists by November 3, 2014. It also ordered that witness lists contain 

“names, addresses, phone numbers, and a summary of the testimony in sufficient detail so as to 

provide sufficient detail to the other party . . . .” Appellant did not file his witness list or exhibit 

list until November 6, 2014. The witness list specifically identified 29 persons, but only 

provided addresses for 11 of them and phone numbers for nine (including both appellant and 

appellee Payea). In addition, the witness list was devoid of any summary of the witnesses’ 

proposed testimony, leaving appellees in the position of having to guess what they might offer of 

relevance. 

 Further, appellant’s amended witness list also omitted addresses and phone numbers for 

15 of the 25 specifically listed witnesses. As for summaries of the proposed testimony, the 

summaries of 14 of the 25 witnesses were set forth largely in the following generic format: 

 . . . testimony will support Petitioner’s allegations of Decedent’s condition 

prior to her death, that Richard Payea was in a fiduciary relationship with the 
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 Appellant argues that the court erred in ruling that his petition 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 findings for clear error and its dispositional 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 applies to somebody who served as 

personal representative for the length of time Norman did.” However, this statement must be 

read in context. What appellee Phillips argued before the court’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 about, why wasn’t 

this done in the first year, or the second year, or even the third year? But now, it’s almost four 

years and we’re talking about a last minute [effort].” Thus, the court was essentially noting 

appellant’s tenure as personal representative in the context of the 22 months that had passed 

before he was appointed. Once again, we find no basis for reversal. 

 Affirmed. 

/s/ Mark T. Boonstra 

/s/ Kurtis T. Wilder 

/s/ Patrick M. Meter 

Decedent, and that Richard received certain financial benefits from the Decedent 

and property of the Estate which form the basis of Petitioner’s claims of undue 

influence and conversion.