Partition; Effect of the death of a party; Joint tenancy with full rights of survivorship; Albro v Allen; Lack of an order of partition; Jackson v Estate of Green; Motion for relief from judgment; Party substitution; Notice; “Must be dismissed” provision in MCR 2.202(A)(1)(b)

The court held that defendant was entitled to relief from judgment in this partition action where the parties owned the property in question as joint tenants with full rights of survivorship, and “plaintiff died before the sale of the property and without entry of an order of partition[.]” They had agreed to a “final stipulated order” to sell the property and split the proceeds. After plaintiff subsequently filed motions for defendant to show cause, he died. The trial court later conducted a hearing on the show-cause motions, and permitted the parties’ daughter, E, “to appear with plaintiff’s attorney. At no point” did any party or E, “as plaintiff’s purported representative, file a motion for substitution under MCR 2.202(A)(1)(a).” After the trial court ordered defendant to vacate the house, she unsuccessfully moved for relief from judgment. The issue on appeal was whether the trial court erred in denying her motion due to plaintiff’s death during the litigation. The court first rejected defendant’s suggestion, based on “the ‘must be dismissed’ provision” in MCR 2.202(A)(1)(b), that dismissal was “in order due to the lack of a motion for substitution.” The court found that language “unambiguous: it does not become operable until a statement of the fact of the death is filed and served.” That did not occur here, and defendant offered no case law “supporting the notion that the oral notification apparently given by plaintiff’s attorney of plaintiff’s death suffices to trigger the dismissal requirement[.]” But the court found the parties’ ownership status was “outcome determinative—when plaintiff died, his pending claim for partition extinguished.” Pursuant to Jackson, absent “completion of the sale contemplated by the stipulated order and subsequent relinquishment of ownership, the parties needed an order of partition, without which ‘the joint tenancy has not been severed.’” As a result, “plaintiff’s interest in the property vested by operation of law in defendant as a joint tenant with rights of survivorship” and the trial court committed an error of law in not granting her relief from judgment. Reversed and remanded for entry of an order dismissing the action in defendant’s favor.