In Re Estate of Moukalled

714 N.W.2d 400, 269 Mich. App. 708
CourtMichigan Court of Appeals
DecidedMay 2, 2006
Docket257732
StatusPublished
Cited by46 cases

This text of 714 N.W.2d 400 (In Re Estate of Moukalled) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Moukalled, 714 N.W.2d 400, 269 Mich. App. 708 (Mich. Ct. App. 2006).

Opinion

714 N.W.2d 400 (2006)
269 Mich. App. 708

In re ESTATE OF Jihad H. MOUKALLED, Deceased.
Bruce Bakian, Petitioner-Appellee,
v.
National City Bank, Personal Representative of the Estate of Jihad H. Moukalled, Deceased, Respondent, and
Fifth Third Bank, Respondent-Appellant.

Docket No. 257732.

Court of Appeals of Michigan.

Submitted December 7, 2005, at Detroit.
Decided February 16, 2006, at 9:00 a.m.
Released for Publication May 2, 2006.

*402 Laurie S. Longo, Ann Arbor, for Bruce Bakian.

O'Reilly Rancilio P.C. (by Matthew K. Casey and Robert Charles Davis), Sterling Heights, for Fifth Third Bank.

Before: WHITE, P.J., and JANSEN and WILDER, JJ.

PER CURIAM.

Respondent Fifth Third Bank appeals as of right the order granting petitioner's motion for reconsideration of the probate court's April 14, 2004, order denying petitioner's motion for enforcement of a security agreement. We affirm.

I

On August 10, 1999, petitioner Bruce Bakian and Jihad H. Moukalled (decedent) executed a promissory note pursuant to which petitioner agreed to loan decedent $150,000. The full amount came due on April 25, 2000. From August 1999 until early March 2000, decedent made timely monthly payments. On March 16, 2000, petitioner and decedent executed a second *403 promissory note by which petitioner agreed to loan decedent an additional $231,000. The second promissory note came due on April 30, 2000. Both notes were executed by decedent in both his personal capacity and his capacity as president of Great Lakes Color Printers, Inc., decedent's business. When the notes came due, decedent failed to make payment. On April 28, 2000, petitioner and decedent, without the assistance of an attorney, executed a document entitled "Security Agreement," which provides in relevant part:

This document is a binding agreement that Borrower Jihad H. Moukalled and Great Lakes Color Printers, Inc. collectively can not [sic] and will not seek protection under corporate or personal bankruptcy for the following Promissorry [sic] Notes (see attached notes). If any sums due under these Promissory Notes are not paid upon demand, and remain unpaid for more than five (5) days from the date due or demanded Great Lakes Color Printers Inc. and Jihad H. Moukalled agrees to the [sic] following. Liquidation of the following personal and Corporate assets will be initiated to full fill [sic] the $381,000 debt owed to Bruce A. Bakian and Gerald Niester.
CORPORATE: All accounts receivable; Office and Plant Equipment; Any and all corporate funds and investments; Buildings and Property; Inventories.
PERSONAL: Cash (savings checking); Stocks; Cash value of Life Insurance; IRA and 401K; Residence and Furnishings at 25171 Rutledge Crossing, Farmington Hills Mi. 48335; Two Vacant lots (Heather Hills); Autos; Boats; Jewelry(Husband/Wife); Art work; Personal Effects; and not excluding any assets or titles, and funds in Mr. Moukalled Wifes [sic] maiden or married name.
This agreement prevents the sale and liquidation of all corporate and personal holdings with out [sic] the written consent of Bruce Bakian and Gerald Niester. [Brackets in original replaced with parentheses.]

In addition to the promissory notes, the parties attached the legal description of two lots situated in Heather Hills.

On November 10, 2000, decedent took his own life and the lives of his wife and three children. Petitioner, respondent's predecessor,[1] and approximately 18 additional creditors filed claims in excess of $2 million against decedent's estate, which had $312,023.36 in total assets.[2] On November 27, 2000, petitioner filed the document entitled "Security Agreement" with the register of deeds, which accepted the document as an actual financing statement.

Petitioner also filed a lis pendens and a claim of lien against the two vacant lots in Heather Hills. Decedent had purchased the two lots in December 1997 pursuant to a land contract, owing approximately $60,000 on the contract at the time of his death. The probate court authorized the personal representative of the estate to pay the outstanding balance on the land contract. The probate court reserved for a later date its determination concerning the validity of petitioner's purported security interest. After a January 7, 2003, *404 hearing,[3] the probate court orally concluded that the description in the agreement was adequate to create a security interest, given that the parties did not dispute decedent's ownership of the two vacant lots in Heather Hills. However, the probate court allowed respondent the opportunity to submit further written argument. By order dated April 14, 2004, the probate court reversed its position and entered an order denying petitioner's motion for enforcement of the security agreement/lien, rejecting petitioner's several alternative theories supporting his contention that the agreement granted him priority over other creditors., i.e., that the agreement satisfied the statutory requirements for a valid and enforceable security agreement under article 9 of the Uniform Commercial Code (UCC), specifically former MCL 440.9104(j), or that he was entitled to the lots pursuant to a land contract mortgage, a contract interest under the common law, or an equitable lien.

Petitioner moved for reconsideration, and the probate court, concluding that a palpable error had occurred when it failed, as required by MCL 440.1102(1) to "liberally" apply the purpose and intent of the parties, entered an order granting reconsideration and petitioner's motion for enforcement of the security agreement/lien. In granting the motion for reconsideration, the probate court reasoned that even if the parties' agreement was not technically sound as required by the UCC, "the UCC is still to be liberally construed and applied to promote its purpose and principle." Respondent now appeals.

II

This Court reviews for an abuse of discretion a trial court's decision on a motion for reconsideration. Churchman v. Rickerson, 240 Mich.App. 223, 233, 611 N.W.2d 333 (2000). Issues of law, including whether a valid and enforceable security agreement exists under article 9 of the UCC, are reviewed de novo. Roan v. Murray, 219 Mich.App. 562, 565, 556 N.W.2d 893 (1996). Questions of statutory interpretation are questions of law and are also reviewed de novo. Stone v. Michigan, 467 Mich. 288, 291, 651 N.W.2d 64 (2002).

III

Respondent first argues that the probate court improperly granted petitioner's motion for reconsideration. Respondent contends that the motion was procedurally defective because it simply raised the same issues originally presented to the probate court. We disagree.

Rules concerning the interpretation of statutes apply with equal force to the interpretation of court rules. When the plain and ordinary meaning of a word is clear, judicial construction is neither permitted nor necessary. Hinkle v. Wayne Co. Clerk, 467 Mich. 337, 340, 654 N.W.2d 315 (2002).

MCR 2.119(F)(3) provides:

Generally, and without restricting the discretion of the court,

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Bluebook (online)
714 N.W.2d 400, 269 Mich. App. 708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-moukalled-michctapp-2006.