Respondent Frances Goldman appeals by right an order granting partial summary disposition for petitioner. MCR 7.203(A)(2); MCR 5.801(B)(1). This appeal arises from a protracted dispute between two sisters, daughters of the late Sarah "Sally" Handelsman (Handelsman). Respondent Goldman is one of the sisters; the other, Rochelle Schultz, is married to Lowell Schultz. We hold the trial court did not err in granting partial summary disposition because there was no genuine issue of material fact to decide at trial. We also hold that a gift of the right to receive rents is not a conveyance of an interest in land to which the statute of frauds applies. MCL 566.106.
Petitioner, the successor trustee of the Sarah Handelsman Trust, and formerly Handelsman's conservator, moved under MCR 2.116(C)(10) to have the court find that Handelsman gave to Lowell Schultz, as a gift, the right to collect and keep all the rents from the second floor of a two-story commercial building that two Handelsman family trusts owned equally. Petitioner claimed that Handelsman gave Lowell Schultz the right to receive the upstairs rents in 1985, before she was found to be incompetent in 1995. Respondent opposed the motion, arguing that (1) whether Handelsman intended the transfer of the "upstairs rents" as a gift remained a genuine issue of material fact for trial, and (2) that the purported gift was
This Court reviews de novo the grant or denial of a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Whether the statute of frauds applies to the alleged gift presents a question of law that this Court reviews de novo. Forge v. Smith, 458 Mich. 198, 204, 580 N.W.2d 876 (1998); Zander v. Ogihara Corp., 213 Mich.App. 438, 441, 540 N.W.2d 702 (1995). We conclude that the trial court did not err in granting partial summary disposition for petitioner because respondent failed to proffer any admissible evidence in support of her claim that Handelsman did not make a gift of the upstairs rents to her son-in-law. We also find that the trial court correctly determined that the statute of frauds did not apply.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Corley v. Detroit Bd. of Ed., 470 Mich. 274, 278, 681 N.W.2d 342 (2004). The purpose of such a motion is to avoid extended discovery and an evidentiary hearing when a case can be quickly resolved as a matter of law. Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp., 259 Mich.App. 315, 324, 675 N.W.2d 271 (2003). The moving party must specifically identify the undisputed factual issues, MCR 2.116(G)(4), Maiden, supra at 120, 597 N.W.2d 817, and support its position with affidavits, depositions, admissions, or documentary evidence, MCR 2.116(G)(3)(b); Smith v. Globe Life Ins. Co., 460 Mich. 446, 455, 597 N.W.2d 28 (1999). Here, petitioner submitted two items of evidence to show that Handelsman made a gift of the upstairs rents to her son-in-law, an affidavit by a Comerica trust department employee and the deposition of the attorney who drew up the Sarah Handelsman Trust agreement.
If the moving party carries its initial burden, the party opposing the motion must then demonstrate with admissible evidence that a genuine and material issue of disputed fact exists, otherwise summary disposition is properly granted. MCR 2.116(G)(4); Smith, supra at 455 n. 2. We evaluate the trial court's decision on petitioner's motion "by considering the substantively admissible evidence actually proffered in opposition to the motion. A reviewing court may not employ a standard citing the mere possibility that the claim might be supported by evidence produced at trial. A mere promise is insufficient under our court rules." Maiden, supra at 121, 597 N.W.2d 817.
In opposing petitioner's motion, respondent attacked the credibility of petitioner's evidence. In addition, respondent argued that (1) Lowell Schultz referred to the management of the upstairs as "his business" in a prior, uncompleted proceeding; (2) that when Handelsman's trust was restated in 1993 there was no mention of the gift to Schultz; (3) that there is nothing to reflect that a gift was intended; (4) that petitioner's employees had been inconsistent in how it characterized the transaction; (5) that no gift tax return was ever filed; (6) that "it seems inconceivable that those people all together would have allowed a gift to go improperly treated over all of these years"; and (7) that Handelsman never substantiated the gift in writing. Respondent also argued that the substance of Lowell Schultz's prior testimony
When reviewing submitted documentary evidence on a C(10) motion, the trial court must consider it in the light most favorable to the nonmoving party. Maiden, supra at 120, 597 N.W.2d 817. Further, a trial court may not make findings of fact or weigh credibility in deciding a motion for summary disposition. Skinner v. Square D Co., 445 Mich. 153, 161, 516 N.W.2d 475 (1994). Moreover, this Court will be liberal in finding a genuine issue of material fact that requires a trial to resolve. Lash v. Allstate Ins. Co., 210 Mich.App. 98, 101, 532 N.W.2d 869 (1995). Nevertheless, when the party opposing the motion fails to present evidence to establish an issue of material fact, summary disposition is appropriate. Smith, supra at 455 n. 2; Porter v. Royal Oak, 214 Mich.App. 478, 484, 542 N.W.2d 905 (1995).
Respondent conceded that the upstairs rents were delivered to and accepted by Schulz, leaving as the only material issue of fact whether Handelsman intended to transfer the upstairs rents gratuitously to Mr. Schulz. Respondent attacked the credibility and consistency of petitioner's witnesses because of bias and because petitioner gave a contrary position regarding part of the upstairs rents in a prior proceeding, i.e., that the rents were in part compensatory for management services. But, the critical issue here is not how others viewed the situation; rather it is what Handelsman intended. In that regard, it was undisputed that dating back to 1985 Handelsman wanted Lowell Schultz to have the upstairs rents. Further, although Handelsman also expressed a desire that Lowell be involved in the management of the building, there was no evidence that Handelsman considered the rents as compensatory. Respondent offered no evidence of her own — as opposed to evidence attacking petitioner's evidence or credibility — to support her claim that Handelsman did not intend to give the rents to Schultz. Respondent's arguments — such as about petitioner's motives, the failure to file gift tax returns, etc. — provided no evidence of Handelsman's intent in 1985 when she allowed Schultz to begin collecting and keeping the upstairs rents. In sum, respondent failed to submit to the trial court any independent evidence that Handelsman did not intend that the upstairs rents be a gift to her son-in-law, Lowell Schultz.
We recognize that summary disposition is rarely appropriate in cases involving questions of credibility, intent, or state of mind. Michigan Nat'l Bank-Oakland v. Wheeling, 165 Mich.App. 738, 744-745, 419 N.W.2d 746 (1988). Even so, our review de novo of the record convinces us
Respondent next argued that Handelsman's gift to Schultz of the upstairs rents is void under the statute of frauds, which provides:
Respondent cited Brooks v. Gillow, 352 Mich. 189, 195, 89 N.W.2d 457 (1958), for the proposition that the statute applies to oral gifts of an interest in real estate. In Brooks, the Court held that the statute of frauds applied to a purported oral gift of a vendor's interest in a land contract. The claimant argued that, under the doctrine of equitable conversion, the vendor's interest in the land contract was personal property and the gift was completed by delivery and acceptance of the contract. See Charter Twp. of Pittsfield v. City of Saline, 103 Mich.App. 99, 103, 302 N.W.2d 608 (1981), quoting 77 Am. Jur. 2d, Vendor and Purchaser, § 317, pp. 478-479: "`A contract for the sale of land operates as an equitable conversion; the vendee's interest under the contract becomes realty and the vendor's interest under the contract constitutes personalty.'" The Brooks Court agreed that Michigan recognized the doctrine of equitable conversion, but nevertheless reasoned that to hold that a vendor's interest in a land contract is personalty to the extent the statute did not apply would "open the door to fraud." Brooks, supra at 193, 89 N.W.2d 457. So, the Court held that "[a] vendor's interest in a land contract so far partakes of an interest in real estate that the conveyance, transfer (including the gift) or assignment of such an interest under the statute of frauds must be in writing [and] cannot ... be the subject of an oral gift inter vivos." Id. at 195, 89 N.W.2d 457. Thus, the critical issue in the instant case is whether a gift of rents is a gift of an interest in real property to the extent that the statute of frauds applies.
No published Michigan case answers this precise question. The closest analogous published cases address oral agreements to share profits from the sale of land, which agreements gave been held to fall outside the statute of frauds. See, e.g., Koffman v. Mathews, 352 Mich. 390, 89 N.W.2d 756 (1958), and Price v. Nellist, 316 Mich. 418, 25 N.W.2d 512 (1947). "`The general rule is that agreements to share profits and losses arising from the purchase and sale of real estate are not contracts for the sale or transfer of interests in land and need not be in writing.'" Koffman, supra at 394, 89 N.W.2d 756, quoting Price, supra at 422, 25 N.W.2d 512. In Gruppuso v. Faraci, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2001 (Docket No. 220993), 2001 WL 699938 this Court extended the general rule to an oral contract authorizing collection of rent on a parcel of land. The Gruppuso Court held that, rather than being an interest in land,
Although Gruppuso is not binding precedent, MCR 7.215(C)(1), we find that it correctly extended to oral agreements concerning rental payments the longstanding general rule placing outside the statute of frauds oral agreements that do not create or transfer an estate in real property; i.e., they only address profits generated from real estate transactions. In other words, when an oral agreement relates to the money generated by real property, rather than that creating or transferring an interest in the real estate itself, the statute of frauds is not implicated. See Koffman, supra at 399, 89 N.W.2d 756, quoting Carr, supra at 542, 20 N.W. 576.
The Oregon Supreme Court, in Watters v. Watters, 270 Or. 673, 528 P.2d 1347 (1974), addressed whether that state's statute of frauds precluded enforcement of an oral family agreement that certain rental income generated by a shopping mall go to the family patriarch for life and then to his spouse. The court held that enforcement of the oral agreement was not precluded under either the common law or the modern rationale for the statute of frauds. The court opined:
Although neither Gruppuso nor Watters is binding precedent, we find their reasoning persuasive. Accordingly, we hold that the trial court correctly ruled that the statute of frauds did not apply to the oral gift of rental income in the case at bar.