Debtor/Creditor

This summary also appears under Attorneys

 

Issues: Order setting aside a writ of garnishment; Whether an attorney could validly obtain a writ of garnishment after the client's death; Agency; Nelson v. Consumers Power Co.; 3 Restatement of Agency § 3.07(2); Ratification; Echelon Homes, LLC v. Carter Lumber Co.; Henritzy v. General Elec. Co.; Attorney fees; Sanctions under MCL 600.2591(1) or MCR 2.114(F)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Herrmann v. Herrmann

e-Journal Number: 58426

Judge(s): Per Curiam – Saad, O'Connell, and Murray

 

Holding that the decedent's attorney had actual authority to issue the writ of garnishment given that she did so before she had notice of his death, the court concluded that the trial court erred in setting aside the garnishment. However, the trial court was within its discretion in denying the motion by the defendant (the decedent's successor in interest) for costs and attorney fees. Thus, the court reversed the order setting aside the garnishment but affirmed the order denying attorney fees and costs. In a prior opinion, the court resolved a spousal support dispute between the decedent (Glenn) and the plaintiff, his ex-wife, concluding that the totality of the circumstances plainly showed that plaintiff was cohabitating with an unrelated male. On remand, Glenn moved to terminate spousal support and for repayment of all support paid after the cohabitation started. The trial court "terminated Glenn's obligation to pay spousal support and entered a money judgment against plaintiff totaling $7,129.77." Glenn obtained a writ of garnishment and served it on a company that he believed was plaintiff's employer. Glenn died on 3/4/13. Before his attorney was notified of Glenn's death, the attorney obtained a second writ of garnishment and served it on a different company. Plaintiff objected to the garnishment. After a hearing, the trial court set aside the garnishment order, apparently on the basis Glenn's attorney had no legal authority to obtain a writ of garnishment after Glenn's death. The attorney later moved for substitution of defendant, Glenn's surviving spouse, as successor in interest. The trial court granted the motion to substitute defendant as a party, but declined to vacate the order setting aside the garnishment. The court noted that the Restatement of Agency provides that the "death of an individual principal terminates the agent's actual authority. The termination is effective only when the agent has notice of the principal's death." Further, defendant later ratified the attorney's actions, and the ratification related back to the date the attorney obtained the writ. "Because the attorney's actions were authorized by the ratification, there were no grounds for the trial court to set aside the writ of garnishment."

 

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