Willsmore v. Oceola Tp., Docket No. 44835

• Decision Date: 03 June 1981
• Docket Number: Docket No. 44835
• Citation: 308 N.W.2d 796,23 A.L.R.4th 1012,106 Mich.App. 671
• Parties: Duane WILLSMORE, Plaintiff, Counter-Defendant, Appellee and Cross-Appellant, v. TOWNSHIP OF OCEOLA, Defendant, Cross-Plaintiff, Appellee and Cross-Appellee, and Director of the Michigan State Police, Defendant-Appellant and Cross-Appellee, and Frank J. Kelley, Attorney General of Michigan, Defendant, Cross-Plaintiff, Appellant and Cross-Appellee, and John Doe (Thomas D. Powell), Defendant, Counter-Plaintiff, Appellant and Cross-Appellee. 106 Mich.App. 671, 308 N.W.2d 796, 23 A.L.R.4th 1012
• Court: Court of Appeal of Michigan — District of US

Page 796

308 N.W.2d 796

Duane WILLSMORE, Plaintiff, Counter-Defendant, Appellee and Cross-Appellant, v. TOWNSHIP OF OCEOLA, Defendant, Cross-Plaintiff, Appellee and Cross-Appellee and Director of the Michigan State Police, Defendant-Appellant and Cross-Appellee and Frank J. Kelley, Attorney General of Michigan, Defendant Cross-Plaintiff, Appellant and Cross-Appellee and John Doe (Thomas D. Powell), Defendant, Counter-Plaintiff, Appellant and Cross-Appellee.

Docket No. 44835.

106 Mich.App. 671, 308 N.W.2d 796, 23 A.L.R.4th 1012

Court of Appeals of Michigan.

June 3, 1981.

Released for Publication Aug. 5, 1981.

[106 MICHAPP 674] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George H. Weller, Asst. Atty. Gen., for Kelley.

Michael J. McGivney, Brighton, for Thos. Powell.

Richard T. Haynes, John A. Ashton, Plymouth, for Willsmore.

Theodore W. Swift, William K. Fahey, Lansing, for Oceola Twp.

[106 MICHAPP 675] Before DANHOF, C. J., and KELLY and CORSIGLIA, ^* JJ.

CORSIGLIA, Judge.

An appeal is taken from an order of the Livingston County Circuit Court awarding money found in a suitcase buried on vacant, open and unimproved land to the finder, Duane Willsmore, and the Township of Oceola, pursuant to the provisions of the Lost Goods and Stray Beasts Act, M.C.L. § 434.1 et seq.; M.S.A. § 18.701 et seq., (hereinafter referred to as the "Lost Goods Act"). Interested persons are referred to a prior decision of this Court upon appeal from a summary judgment entered in this case. Doe v. Township of Oceola, 84 Mich.App. 514, 270 N.W.2d 254 (1978).

This case is framed as a declaratory judgment action under GCR 1963, 521. Upon remand, following trial, various motions for directed verdict were granted by the trial court, and the case was withdrawn from the jury. The order and the judgment at issue adjudicated the respective rights of the parties to the money; hence, for purposes of clarity, all parties will be referred to as "claimants" irrespective of their status as plaintiffs or defendants below.

The claimants involved in this litigation are as follows:

(1) Duane Willsmore, the finder;

(2) The Township of Oceola, claimant under the provisions of the Lost Goods Act;

(3) Thomas Powell, the land-contract vendee, also claiming the money as the "true owner";

(4) The State of Michigan through the Attorney General, claimant under the Code of Escheats, M.C.L. § 567.11 et seq.; M.S.A. § 26.1053(1) et seq.

The Director of the Michigan State Police was [106 MICHAPP 676] dismissed at trial as an unnecessary party and does not present issues on appeal. The land contract vendors voluntarily relinquished any claim that they may have had for the money and are not parties to this suit.

Briefly, the facts are as follows: While hunting on unposted and unoccupied property in Oceola Township in October of 1974, claimant Duane Willsmore found a substantial amount of money ($383,840) buried in a watertight suitcase. He was attracted to the buried suitcase because he noticed an area with branches arranged in a crisscross pattern. When he kicked aside the branches and sod, he found the suitcase in a freshly dug hole. Willsmore took the suitcase, as yet unopened, to his home. Later the same day he informed the State Police of his find. A state trooper and claimant Willsmore together pried open the suitcase and discovered the money inside. The State Police took custody of the money, and eventually it was deposited in an interest bearing account.

Albeit a bit tardily, claimant Willsmore complied with the provisions of the Lost Goods Act of Michigan. This act provides that the finder shall give notice to potential owners, post notice in two places within the township of the find, publish notice in a newspaper if the goods are of a value of $10 or more and give notice in writing to the township clerk. The statute requires that these things be done within very short time periods. Claimant Willsmore did not comply with the strict language of the statute. This lapse is understandable in light of the advice he received from the police. After the State Police took custody of the suitcase, they told the finder and his wife to keep silent about the money, informed them that their lives might be in danger, suggested that leaving [106 MICHAPP 677] town for a time might be a good idea and even transported them in a state vehicle at speeds reaching up to 100 m.p.h. accompanied by officers armed with rifles. There is no indication on the record that the delay in complying with the provisions of the Lost Goods Act was a willful refusal to comply, or that it caused it to be more difficult for the true owner of the money to be located. Indeed, claimant Willsmore's initial action upon finding the property was to notify a governmental authority, not attempt to keep it himself. It is understandable that after receiving instructions from the State Police to keep quiet, claimant Willsmore did not act within the time limits set in the statute. As an initial note, this Court affirms the finding of the trial court that claimant Willsmore substantially complied with the notice provisions of the Lost Goods Act. See Meredith v. City of Melvindale, 381 Mich. 572, 165 N.W.2d 7 (1969).

Claimant Willsmore filed a declaratory judgment action in order to obtain a determination of the ownership of the money he found. The State of Michigan intervened in the suit, claiming right to the money under the Code of Escheats. The Township of Oceola claimed an interest in the money under the Lost Goods Act. The land contract vendee, Thomas Powell, also intervened, alleging true ownerhsip and that his rights as a land contract vendee of the property upon which the money was found entitled him to the money. Claimant Powell had been the land contract vendee for less than three months when the money was found. By the time of trial, claimant Powell's interest in the property had been terminated by a writ of restitution entered against him. The land contract vendors declared earlier that they wanted no interest in the money.

[106 MICHAPP 678] Prior to trial, the trial court granted a motion for summary judgment in favor of the finder and the township. This judgment was appealed, and in a prior decision this Court reversed the lower court and remanded for a full hearing on the facts. Doe v. Township of Oceola, supra. After several days of trial, at the trial's conclusion, the court made rulings of law sufficient to dispose of the case on motions for directed verdict. The court found in favor of the finder, Duane Willsmore, and the Township of Oceola, under the Lost Goods Act, and divided the money in an approximate fifty-fifty split. All parties except the township appeal.

Since this case involves a substantial sum of money and substantial uncharted areas of law, this Court feels compelled to discuss the various arguments on appeal in detail. Although the law in this area is somewhat confused, it is a universally accepted fundamental principle of property law that the true owner, assuming he presented himself within the one-year statute of limitations of the Lost Goods Act, would be entitled to the money before any other party in this case. However, true ownership must be established to the satisfaction of the court.

On this point, this Court affirms the trial court's directed verdict against claimant Powell asserting a right to the money as the true owner. In the prior appeal from a summary judgment granted by the trial court, this Court remanded, stating:

"In the instant case, final determination of the respective rights of each of the parties to the property discovered by plaintiff John Doe rests primarily upon both the weight and the credibility which the trial court assigns to the testimony of defendant Powell. Regardless of which legal theory the court chooses to apply to the facts of this case, if defendant Powell's [106 MICHAPP 679] assertion of ownership were accepted by the trier of fact, he would prevail." Id., 519, 270 N.W.2d 254.

Upon remand, the trial court concluded, as a matter of law, that claimant Powell's assertion of true ownership failed.

Voluntarily, and perhaps wisely, claimant Powell did not present himself at trial. His attorneys attempted to introduce his deposition testimony, and the trial court ruled that it was inadmissible. In a civil suit the Fifth Amendment may act as a shield to protect a party from cross-examination which would tend to incriminate him. However, claimant Powell attempted to use it as a sword and his absence at the trial was by choice.

In addition, because of his continued assertion of the right to remain silent in the face of relevant cross-examination questions at his deposition, the trial court had an alternative basis for excluding the deposition testimony. Claimant Powell argues on appeal that he answered inquiries at his deposition regarding facts sufficient to establish his ownership of the money. He argues that many of the questions at the deposition were unrelated to the facts at issue, and the Attorney General was attempting an impermissible fishing expedition in search of incriminating evidence. However, our reading of the deposition testimony compels us to concur with the ruling of the trial judge. Claimant Powell sought to use, as a standard for answering questions, his own attorney's opinion, or his personal opinion, whether the questions were germane to the issue before the court. Such a standard is almost inevitably self-serving. At Powell's deposition, virtually the only answer he would give was the bald assertion that he was the true owner of the money. When asked the sum of money in the suitcase, his answer was incorrect.

[106 MICHAPP 680] Due to the nature of the controversy, it was required that a party claiming as true owner prove his ownership. When faced with questions about how he obtained the money and hid it, claimant Powell had the right to assert his constitutional...