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No. 135137
| Dimitrios Zavradinos, |
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Lindsay James |
Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Oakland - Goldsmith, M.) |
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| JTRB, INC., JTR II, L.L.C., RTI, INC., Little Daddy's |
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| of Bloomfield Hills, Michigan, L.L.C., Richard |
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| Rogow, Athanasios Peristeris, and Darren |
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| Mccarty, |
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Defendants, |
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| and |
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| Robert Probert, |
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Robert J. Figa |
Defendant-Appellee, |
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| Liza Danielle Probert, |
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Intervening Party-Appellee. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Application for Leave to Appeal>>
Plaintiff-Appellant's Supplemental Brief>>
Defendant Robert Probert and Intervening Party-Appellee Liza Danielle Probert's Brief in Opposition to Application for Leave to Appeal>>
Defendant Robert Probert and Intervening Party-Appellee Liza Danielle Probert's Supplemental Brief>>
Background
In August 2005, Dimitrios Zavradinos was awarded a judgment of $170,000 against Robert Probert. Zavradinos learned that Probert had two brokerage accounts at Solomon Smith Barney holding nearly $160,000 in assets, and sought to garnish the accounts. Probert and his wife, Liza Probert, objected to the garnishment, claiming that they held the accounts as tenants by the entirety, and that the accounts were not subject to a garnishment action for a judgment against Probert alone. Pursuant to MCL 557.551, there is a statutory presumption that property held jointly by a husband and wife is held by them as tenants by the entirety unless the title otherwise expressly provides. Zavradinos claims that the statutory presumption is rebutted in this case by evidence that the Proberts established the accounts as a joint tenancy. A financial consultant with Solomon Smith Barney who was partially responsible for managing the Proberts’ accounts testified that the Proberts had set up the accounts as joint tenants with rights of survivorship, and the accounts had always been treated as such. Solomon Smith Barney documents provide that the accounts are held by “Robert and Liza Probert JTWROS,” (joint tenants with right of survivorship). The trial court denied the Proberts’ motion to set aside the garnishment. The trial court reasoned that the evidence established that the accounts were held as “JTWROS” or “joint tenants with right of survivorship,” and that this evidence was sufficient to overcome the statutory presumption of tenancy by the entirety. The circuit court further ruled that because Liza Probert had contributed nothing to the account, Robert Probert owned all of the money in the accounts, so all of the funds in the accounts were available to satisfy Zavradinos’ garnishment. The Proberts appealed. The Court of Appeals issued a split unpublished per curiam opinion reversing the trial court. The majority reasoned that the only way to overcome the presumption of tenancy by the entirety when property is held by a married couple is to use the words “not as tenants by the entirety” when that is the intent of the conveyance. The dissenting judge would not require an explicit disclaimer of an intent to create a tenancy by the entirety in order, and would have affirmed the trial court. Zavradinos appeals.
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