Ivey v. Fred H. Kaul Funeral Home
| Decision Date | 10 November 2022 |
| Docket Number | 358451 |
| Parties | GERALDINE L. IVEY, Plaintiff-Appellant, v. FRED H. KAUL FUNERAL HOME, INC, Defendant, and LAURA BERLIN, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court LCNo. 2021-001417-CZ
Before: Garrett, P.J., and O'Brien and Redford, JJ.
PlaintiffGeraldine Ivey appeals as of right the trial court's order granting summary disposition under MCR 2.116(C)(8) in favor of defendantLaura Berlin and dismissing Ivey's claims of conversion and intentional infliction of emotional distress (IIED).Ivey argues that the trial court erred by granting Berlin's motion for summary disposition, by denying Ivey's motion for reconsideration, and by denying Ivey's request to amend her complaint.For the reasons set forth in this opinion, we affirm.
This case involves a dispute among two sisters, Ivey and Berlin following the death of their mother, Marie Ilardo.In 2012 Ivey entered into a prearranged agreement with defendant Kaul Funeral Home for Ilardo's funeral services.Ilardo died in Macomb County on January 22, 2019, and Berlin organized the funeral arrangements.Ivey, who lived in Texas, alleged that Berlin did not inform her about their mother's death before making hurried funeral arrangements and excluded her from involvement in carrying out their mother's last wishes.
In April 2021, Ivey filed suit against Berlin, raising claims of conversion and IIED.[1] For the claim of conversion, Ivey alleged that Berlin wrongfully withheld and secretly retained 16 envelopes with monetary gifts left at the funeral, as well as Ilardo's three yellow rings, rosary, and other personal effects.For the IIED claim, Ivey stated that Berlin's conduct surrounding the funeral arrangements, as alleged throughout the complaint, was intentional, extreme, and outrageous, and caused Ivey severe emotional distress.
Berlin moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing in part that Ivey failed to state a claim of conversion and IIED.The trial court granted Berlin's motion under MCR 2.116(C)(8).[2]The court held that Ivey failed to state a valid claim of conversion because Ivey did not allege that she owned any of the items taken by Berlin.In addition, the court dismissed the IIED claim, holding that Ivey's allegations related to Berlin's conduct could not be characterized as extreme or outrageous.
Ivey moved for reconsideration, arguing that she sufficiently stated a claim of conversion against Berlin.Ivey contended that she was a beneficiary of Ilardo's estate, and that Berlin, by wrongfully taking monetary gifts and personal effects, denied Ivey's interest in this property.Ivey also argued that the factual allegations involving Berlin's extreme and outrageous conduct stated a claim of IIED.Ivey stated, in the alternative, that the trial court should allow her an opportunity to amend her complaint under MCR 2.116(I)(5).
The trial court denied Ivey's motion for reconsideration.For the conversion claim, the trial court found that Ivey failed to support her position that she had a property interest in the items allegedly taken by Berlin.The trial court also stated that the IIED claim was properly dismissed because Berlin's alleged conduct could not be characterized as extreme or outrageous.Finally, the trial court denied Ivey's request to amend her complaint because Ivey failed to support her request with any details on the claims she sought to add or amend.Ivey now appeals.
Ivey argues that the trial court erred by granting Berlin's motion for summary disposition and dismissing Ivey's claims of conversion and IIED.We review a trial court's decision on a motion for summary disposition de novo.El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665(2019).De novo review means that we"review the legal issue independently" and without deference to the trial court.Wright v Genesee Co, 504 Mich. 410, 417; 934 N.W.2d 805(2019).In El-Khalil, 504 Mich. at 159-160, the Supreme Court recited the legal standard for reviewing a motion for summary disposition under MCR 2.116(C)(8):
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the complaint.When considering such a motion, a trial court must accept all factual allegations as true, deciding the motion on the pleadings alone.A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery.[Citations omitted.]
Ivey argues that the trial court erred by concluding that she failed to state a claim of conversion.[3] Common-law conversion is "any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his right therein."Aroma Wines & Equip, Inc v Columbian Distribution Servs, Inc, 497 Mich. 337, 346; 871 N.W.2d 136(2015)(quotation marks and citations omitted).Conversion is generally considered "an intentional tort because the converter's acts are willful, [but] one can also commit this tort while being unaware of the plaintiff's property interest."Lawsuit Financial, LLC v Curry, 261 Mich.App. 579, 591; 683 N.W.2d 233(2004)."Conversion may occur when a party properly in possession of property uses it in an improper way, for an improper purpose, or by delivering it without authorization to a third party."Dep't of Agriculture v Appletree Mktg, LLC, 485 Mich. 1, 14; 779 N.W.2d 237(2010).When the plaintiff fails to allege facts establishing that the defendant wrongfully exercised control over the property, the plaintiff fails to state a claim of common-law conversion.SeeLawsuit Financial, 261 Mich.App. at 591-592.
Ivey contends that Berlin wrongfully took items intended for Ilardo's estate.As an equal devisee of the estate, Ivey argues that Berlin's actions denied Ivey her interest in these items.
Ivey's complaint alleged that Berlin "wrongfully withheld" 16 envelopes with monetary gifts, and Ilardo's three yellow rings, rosary, and other personal effects.She also alleged that she"did not give Defendant Berlin permission to accept or keep these items, and Defendant Berlin otherwise did not have any right to retain them."Missing from Ivey's allegations is why Berlin needed permission from Ivey to control these items.Ivey did not allege that these items were her personal property.And crucially, nowhere in the complaint did Ivey allege that she was entitled to the property as a devisee of Ilardo's estate.[4] Ivey mentioned Ilardo's will for the first time in her motion for reconsideration.But without amending her complaint to include allegations about the will and its impact on Ivey's entitlement to the property, the trial court could not consider this information on a (C)(8) motion.[5]SeeEl-Khalil, 504 Mich. at 159-160.We also cannot consider the will, or Ivey's status as a devisee, in deciding whether the trial court properly granted Berlin's motion for summary disposition under subrule (C)(8).Our review is limited to the complaint, which does not allege that Ivey had a property interest in the items taken by Berlin as a beneficiary of their mother's estate.Instead, Ivey summarily stated that Berlin "wrongfully withheld" the alleged items from Ivey because Berlin had no right to retain them."A mere statement of a pleader's conclusions, unsupported by allegations of fact, will not suffice to state a cause of action."Lawsuit Financial, 261 Mich.App. at 592.Because Ivey did not allege facts establishing that Berlin wrongfully exercised control over the disputed items, the trial court did not err by dismissing Ivey's claim of conversion under MCR 2.116(C)(8).
Next, Ivey asserts that the trial court erred by dismissing her IIED claim."To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff must present evidence of (1)the defendant's extreme and outrageous conduct, (2)the defendant's intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff."Walsh v Taylor, 263 Mich.App. 618, 634; 689 N.W.2d 506(2004)."Liability attaches only when a plaintiff can demonstrate that the defendant's conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community."Lewis v LeGrow, 258 Mich.App. 175, 196; 670 N.W.2d 675(2003)(quotation marks and citation omitted)."[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" cannot support an IIED claim.Doe v Mills, 212 Mich.App. 73, 91; 536 N.W.2d 824(1995).But where reasonable minds may differ on whether the defendant's conduct was extreme and outrageous, summary disposition is unwarranted.SeeHayley v Allstate Ins Co, 262 Mich.App. 571, 577; 686 N.W.2d 273(2004).
The allegations against Berlin made by Ivey in her complaint do not rise to the level of extreme and outrageous conduct.Ivey alleged that Berlin retained monetary gifts left by individuals at their mother's funeral and took some personal effects of their mother.While this conduct could be considered unbecoming of a family member, reasonable minds could not conclude that the conduct went "beyond all possible bounds of decency" and was "atrocious and utterly intolerable in a civilized community."SeeLewis, 258 Mich.App. at 196.Nor do Ivey's allegations about Berlin's planning and execution of the funeral arrangements create a question of fact.For instance one of Ivey's most striking claims is that Berlin "provided beer...
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