DAVIDSON v. BUGBEE

Docket No. 198372.

575 N.W.2d 574 (1997)

227 Mich. App. 264

Laura J. DAVIDSON, Plaintiff-Appellant, v. Charles A. BUGBEE, Defendant-Appellee.

Court of Appeals of Michigan.

Decided December 30, 1997, at 9:15 a.m.

Released for Publication March 26, 1998.


Attorney(s) appearing for the Case

Willard L. Mikesell, Charlotte, for Plaintiff-Appellant.

Fried, Watson & Bugbee, P.C. by David M. Fried and Louis D. Bugbee, Bingham Farms, for Defendant-Appellee.

Before JANSEN, P.J., and DOCTOROFF and GAGE, JJ.


DOCTOROFF, Judge.

Plaintiff appeals as of right from a judgment entered in favor of defendant after a bench trial. We affirm.

On July 12, 1983, Leslie Davidson transferred real property located on Battle Creek Road in Charlotte, Michigan, by quitclaim deed to defendant and himself as joint tenants with full rights of survivorship. Defendant testified that, at the same time, Davidson orally gifted farm equipment to him. On November 23, 1984, Davidson married plaintiff. On October 7, 1985, Davidson executed a bill of sale that purported to transfer to plaintiff the same farm equipment previously gifted to defendant. On July 23, 1993, Davidson conveyed his interest in the Battle Creek Road property by quitclaim deed to defendant as sole owner. Davidson died in January 1995. In February 1995, plaintiff made a demand for the farm equipment, which defendant did not answer. On October 12, 1995, plaintiff brought this action for claim and delivery of the farm equipment.

On appeal, plaintiff first argues that the trial court abused its discretion in admitting defendant's testimony regarding a statement made by Davidson. Defendant testified that, at the time Davidson transferred the real property to himself and defendant, Davidson said "the personal property is yours with no strings attached. You may update, you may repair, you may trade, you can do as you see fit." Plaintiff objected to the testimony on the ground that Davidson's statement was hearsay and not within an exception. The trial court admitted the statement as a statement against interest under MRE 804(b)(3).

This Court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion. Sackett v. Atyeo, 217 Mich.App. 676, 683, 552 N.W.2d 536 (1996). An error in the admission of evidence is not a ground for vacating, modifying, or otherwise disturbing a judgment unless refusal to do so would be inconsistent with substantial justice. Id. Under MRE 804(b)(3), hearsay evidence is admissible if the declarant is unavailable, and the statement is

[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

In the present case, the declarant, Davidson, had died in January 1995 and was therefore unavailable. MRE 804(a)(4); Sackett, supra at 684, 552 N.W.2d 536. Furthermore, Davidson's statement was contrary to his proprietary interest because it was against his ownership interest in the farm equipment, and a reasonable person in Davidson's position would not have made the statement unless he believed it to be true. Id. Therefore, the trial court did not abuse its discretion in admitting the statement under MRE 804(b)(3).

Plaintiff argues that this Court should find as a matter of policy that a hearsay statement by a donor concerning an oral gift should not be admitted unless other direct evidence corroborates the testimony. Plaintiff makes an analogy to the requirement that "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." MRE 804(b)(3). In construing a statute or a court rule, omissions in the language are deemed to be intentional. Johnson v. Marks, 224 Mich.App. 356, 358, 568 N.W.2d 689 (1997). By enacting MRE 804(b)(3), the Supreme Court specifically provided that statements against criminal interests that are offered to exculpate the accused must be supported by corroborating evidence. The Court did not apply any such restriction on the admission of statements against proprietary interests in a civil case, regardless of the circumstances under which the statement was made. Therefore, plaintiff's argument has no merit.

Plaintiff next argues that the trial court's findings of fact were against the great weight of the evidence, because the written bill of sale that purported to transfer the farm equipment from Davidson to plaintiff should have been given greater weight than defendant's testimony regarding the oral gift. We disagree.

A trial court's findings of fact will not be set aside unless they are clearly erroneous. MCR 2.613(C). A finding is clearly erroneous if this Court is left with a definite and firm conviction that a mistake has been made. Berry v. State Farm Mut. Automobile Ins. Co., 219 Mich.App. 340, 345, 556 N.W.2d 207 (1996).

If the gift of the equipment by Davidson to defendant was valid, then Davidson had no interest in the property to convey to plaintiff by the bill of sale. In order for a gift to be valid, three elements must be satisfied: (1) the donor must possess the intent to transfer title gratuitously to the donee, (2) there must be actual or constructive delivery of the subject matter to the donee, unless it is already in the donee's possession, and (3) the donee must accept the gift. Molenda v. Simonson, 307 Mich. 139, 141-142, 11 N.W.2d 835 (1943); Children of the Chippewa, Ottawa & Potawatomy Tribes v. Regents of the Univ. of Michigan, 104 Mich.App. 482, 489, 305 N.W.2d 522 (1981). Acceptance is presumed if the gift is beneficial to the donee. Osius v. Dingell, 375 Mich. 605, 611, 134 N.W.2d 657 (1965).

In the present case, the trial court found defendant's testimony regarding the gift was credible and was evidence of Davidson's intent to transfer title gratuitously to defendant. The court found that the delivery element was met because the property was in defendant's possession. The court also found, on the basis of defendant's testimony, that he accepted the gift. On review of the record, we find that the court's findings were not clearly erroneous. Because Davidson transferred his interest in the property to defendant in 1985, the subsequent bill of sale to plaintiff was not valid.

Plaintiff next argues that the trial court erred in holding that the statutory period of limitation had expired with regard to plaintiff's claim. The question of the governing date of accrual of a cause of action for the purpose of the statute of limitations is a question of fact whose determination is reviewed on appeal for clear error. MCR 2.613(C); Flynn v. McLouth Steel Corp., 55 Mich.App. 669, 675, 223 N.W.2d 297 (1974).

The period of limitation applicable to this action is six years from the date the cause of action accrued. M.C.L. § 600.5813; M.S.A. § 27A.5813. A cause of action accrues when all the elements of the claim have occurred and can be alleged in a proper complaint. Lumley v. Regents for the Univ. of Michigan, 215 Mich.App. 125, 130, 544 N.W.2d 692 (1996). A cause of action for conversion accrues when dominion is wrongfully asserted over another's personal property. Miller v. Green, 37 Mich.App. 132, 138, 194 N.W.2d 491 (1971).

Defendant contends that plaintiff's cause of action accrued in 1985, when he retained possession of the farm equipment after plaintiff received the bill of sale to the property. Plaintiff argues that the limitation period did not begin to run until there had been a wrongful retention of the property by defendant. She contends that defendant's use of the equipment was permissive until she made a demand for the property in May 1995. Plaintiff argues that because defendant's retention of the property was not wrongful until he refused plaintiff's demand, no conversion had occurred until that time. However, the record indicates that defendant also disposed of some of the equipment in 1988, and there is no indication that plaintiff had permitted him to do so. Therefore, even if defendant's initial use of the equipment was permissive, his subsequent sale of the equipment without plaintiff's permission was wrongful. On this record, the trial court's finding that plaintiff's cause of action accrued no later than 1988 was not clearly erroneous. Because she did not bring this action until 1995, more than six years later, her claim is barred.

Affirmed.

GAGE, Judge.

I concur in the result only.


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