Bill & Dena Brown Trust v. Garcia (In re Brown Estate)

• Decision Date: 20 October 2015
• Docket Number: Docket No. 322402,Docket No. 322401
• Citation: 880 N.W.2d 269,312 Mich.App. 684
• Parties: BILL AND DENA BROWN TRUST v. GARCIA In re Brown Estate.
• Court: Court of Appeal of Michigan — District of US

312 Mich.App. 684

880 N.W.2d 269

BILL AND DENA BROWN TRUST

v.GARCIA

In re Brown Estate.

Docket No. 322401

Docket No. 322402

Court of Appeals of Michigan.

Submitted Oct. 8, 2015, at Petoskey.

Decided Oct. 20, 2015, at 9:00 a.m.

Lipson, Neilson, Cole, Seltzer & Garin, PC, Bloomfield Hills (by C. Thomas Ludden and Jeffrey T. Neilson ), for the Bill and Dena Brown Trust and Mark Brown.

Gault Davison, PC (by Edward B. Davison, Grand Blanc and Margaret Brandenburg, Flint), for Geri Garcia.

Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

In these consolidated cases involving an action to quiet title in Docket No. 322401 and a will contest in Docket No. 322402, plaintiff Mark Brown appeals by right the trial court's order granting defendant Geri Garcia summary disposition with respect to plaintiff's claim that the trust agreement did not authorize the trustee's deed at issue.¹ Plaintiff also appeals by right the trial court's order granting summary disposition with respect to plaintiff's claim of undue influence by defendant. For the reasons discussed in this opinion, we affirm.

I. SUMMARY OF FACTS AND PROCEEDINGS

Bill Brown and Dena Brown established an irrevocable trust as part of their estate planning that was intended to distribute their assets to various beneficiaries after both had died. After Dena passed away, Bill became the sole trustee of the trust. Bill, as trustee, conveyed the marital home that was a trust asset to himself by means of a “Lady Bird” quitclaim deed,² which provided that the property would pass to defendant on his death if Bill did not otherwise dispose of the property during his lifetime. Bill did not otherwise dispose of the property before his death. Plaintiff, the successor trustee, asserts that Bill did not have the authority to convey the property to himself after Dena died because doing so was contrary to the intent of the trust that the property pass to the trust beneficiaries after the death of both original settlors. According to plaintiff, the Lady Bird deed, in essence, partially revoked an irrevocable trust. Plaintiff argues that the trial court erred by ruling that the terms of the trust permitted Bill's action.

Plaintiff also argues that defendant was in a fiduciary relationship with Bill and exercised undue influence over Bill with respect to executing the Lady Bird deed. Plaintiff asserts that the trial court erred by granting defendant summary disposition regarding his undue-influence claim because questions of material fact remain.

On June 8, 2007, Bill and Dena as husband and wife created the Living Trust Agreement of Bill M. Brown and Dena G. Brown (the trust). Bill and Dena also executed, on the same day, identical wills that provided for transfer of property to the trust, or, if the testator's spouse did not survive and the trust no longer existed, then specific distribution provisions mirrored those of the trust. A year later, on June 11, 2008, Bill and Dena exercised their authority under the terms of the trust by amending it and their wills to alter the named beneficiaries. These amendments did not alter the terms of the trust at issue in this appeal.

On February 28, 2008, Bill and Dena acquired the subject property located at 10395 South Airport Road, Avery Township, Montmorency County, for $180,000. The former owners³ conveyed the property by warranty deed to Bill and Dena as trustees of the trust. Because Dena had cancer

, the Browns moved to this home to be closer to Bill's former daughter-in-law, Eunice Ruth Dahn, who was a caregiver for both. Dena died on August 10, 2008.

Defendant was born in California on April 22, 1983, and immediately placed for adoption. In October 2009, defendant was contacted by her birth mother, Pam Altz, who informed defendant that her natural father was John Brown, the brother of Bill. Thereafter, defendant contacted John, who rejected defendant's assertion that he was her natural father and also refused to provide a genetic sample for the purpose of testing.

At some point, Altz provided defendant's telephone number to Bill, and he called defendant. After defendant wrote Bill a letter about herself and her family on August 19, 2010, Bill and defendant regularly communicated by telephone and mail. In June 2011, defendant flew from California to Michigan and visited Bill at his home. On January 12, 2012, Bill submitted genetic material for testing and comparison to samples from defendant. The test results excluded Bill as being her possible father, but concluded that the probability the two were related was 97.7% and that the “likelihood that the alleged relative is the biological relative of the tested child is 43 to 1.” Bill apparently provided the test results to John, who responded in a March 8, 2012 letter indicating he thought that the information showed that Bill was her real father.

In February 2012, defendant traveled from California to Michigan for her second visit with Bill. On February 10, 2012, Bill and defendant went to a local branch of PNC Bank, where Bill added her as a joint owner with rights of survivorship to various accounts. Bill and defendant then went to the office of attorney Benjamin Bolser, and Eunice Ruth Dahn joined them. Bill had previously consulted with Bolser and various documents were ready for signature. Defendant—and, if she was unable to serve, Eunice Ruth Dahn—was named as Bill's attorney-in-fact (durable power of attorney); defendant and Dahn were similarly appointed as Bill's patient advocate (durable power of attorney for healthcare). Bill executed a last will and testament that (1) disinherited his two children and their children, (2) devised and bequeathed all the residue of his estate to defendant, and (3) appointed defendant the personal representative of his estate. Bill also signed a living will that directed the withholding of medical treatment in certain circumstances. Finally, Bill, as the sole surviving settlor-trustee, conveyed the Airport Road property to himself as an individual by means of a Lady Bird quitclaim deed that would pass the property to defendant if Bill did not otherwise dispose of it during his lifetime.

After February 2012, defendant, accompanied by various members of her family, visited Bill for short periods of no more than 5 days in March, April, August, and October 2012. John Brown continued to disbelieve defendant's claim of paternity. He wrote to his brother Bill on October 31, 2012, and admonished Bill to not give anyone his cell phone number: “I'm not going to be called and harassed anymore by all of those so called kids of mine who read about me and are after my money....” Plaintiff, John's son, became the successor trustee of the Bill and Dena Brown trust after Bill passed away on January 16, 2013.

Plaintiff, as successor trustee, filed an action in the circuit court on February 1, 2013 to quiet title in the trust to the Airport Road property (Docket No. 322401; LC No. 13–003254–CH). This case requested that the Lady Bird deed be declared and void because it was in contradiction to the terms of the trust. Defendant filed an answer on March 1, 2013, denying that the deed was contrary to the terms of the trust. In later proceedings, plaintiff developed his alternative theory that defendant had used undue influence to cause Bill to execute the deed. This case was assigned to Circuit Judge Michael G. Mack.

On March 8, 2013, defendant, as Bill's nominated personal representative in his February 10, 2012 will, filed a petition in probate court for formal appointment as personal representative and for determination of heirs (Docket No. 322402; LC No. 13–007003–DE). Plaintiff appeared by counsel on March 25, 2013. At a hearing held on April 4, 2013 before Probate Judge Benjamin Bolser, the parties stipulated the entry of an order maintaining the status quo. Judge Bolser, because of his prior involvement as an attorney and witness to the matters in controversy, disqualified himself from hearing the matter. The State Court Administrator assigned this case to Judge Mack. On April 22, 2013, plaintiff filed a petition contesting probate of the February 10, 2012 will on the basis that it was the product of undue influence and sought instead to probate Bill Brown's June 11, 2008 will. On May 13, 2013, the parties and Judge Mack agreed to consolidate the two actions.

In June 2013, plaintiff moved for summary disposition under MCR 2.116(C)(9) and (10)

, and defendant responded with her own motion for summary disposition under MCR 2.116(I). Judge Mack held a hearing on the motions on July 15, 2013. The trial court took the motions under advisement and subsequently issued an opinion and order on August 8, 2013, granting in part defendant's motion and denying plaintiff's motion. The trial court concluded the terms of the trust authorized Bill Brown as the surviving settlor-trustee to execute the Lady Bird deed. In particular, the trial court relied on Article VII of the trust, which provided that “[d]uring Settlor's lifetime, however, Settlor may direct Trustee with respect to any matter concerning the ... distribution ... of trust assets.” Although Article II prohibited the surviving settlor from revoking or amending the trust in any way, the court found persuasive that Article VII powers referred to a singular settlor. Therefore, the court ruled that “[w]hen [Bill] Brown executed the Lady Bird deed on February [10], 2012 he was properly acting under the authority granted to him in Article VII. Additionally, Section 7.10 allowed him, as trustee, to ‘deal in real property ... without regard to the duration of such interest.’ ”

The undue-influence claim, however, remained pending, and following further discovery, defendant moved for summary disposition regarding that claim. After the parties presented oral arguments and further briefing, the trial court issued an opinion and order on May 8, 2014, granting defendant's motion. The trial court relied primarily on the...