Apollinari v. Johnson
| Decision Date | 17 March 1981 |
| Docket Number | Docket No. 47736 |
| Citation | 305 N.W.2d 565,104 Mich.App. 673 |
| Parties | Donna Susan APOLLINARI, for herself, and as next of friend for Nicholas Waselewski and Lisa Ann Waselewski, Plaintiffs-Appellants, v. Terrence JOHNSON, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Stephen J. Trahey, Flat Rock, for plaintiffs-appellants.
Edwin C. Ross, Detroit, for defendant-appellee.
Before RILEY, P. J., and HOLBROOK and BREIGHNER *, JJ.
Plaintiff appeals as of right from the trial court's denial of her motion to set aside a summary judgment in favor of defendant.
Plaintiff's complaint alleged that defendant, through false pretences, fraud, and deceit, obtained $15,963.86 held in trust for herself and Nicholas and Lisa Ann Waselewski by their mother, Patricia Waselewski. Plaintiffs alleged that her widowed mother was mentally ill and emotionally disturbed. Summary judgment was granted pursuant to GCR 1963, 117.2(1), on the bases that: (1) the mother had complete use and control of the monies held and could withdraw the funds whenever she wished and (2) the children, as trust beneficiaries, were not the proper parties to bring the cause of action against defendant.
A motion for summary judgment brought under GCR 1963, 117.2(1) merely tests the legal sufficiency of the claim as determined from the pleadings. Todd v Biglow, 51 Mich.App. 346, 349, 214 N.W.2d 733 (1974). Thus, for the purpose of such a motion all well-pleaded allegations are assumed to be true. Bielski v. Wolverine Ins. Co., 379 Mich. 280, 283, 150 N.W.2d 788 (1967). The test is whether plaintiff's complaint is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 431, 202 N.W.2d 577 (1972).
On the basis of the well-pleaded allegations contained in the complaint, we conclude that plaintiff was not the proper party to bring this action. Pursuant to GCR 1963, 117.2(1) summary judgment was properly granted since plaintiff has not alleged sufficient facts to show a direct cause of action.
Every action must be prosecuted by the real party in interest. GCR 1963, 201.2. Plaintiff's complaint alleged only that the children were beneficiaries of trust accounts held by their mother as trustee. The conclusory averment that the assets "belonged" to the children was not a well-pleaded fact sufficient to avoid dismissal. Valentine v. Michigan Bell Telephone Co., 388 Mich. 19, 30, 199 N.W.2d 182 (1972). The separation of legal and equitable title is one of the distinctive features of the trust relationship. Legal title vests in the trustee to be held for the benefit of the beneficiary. Stephens v. Detroit Trust Co., 284 Mich. 149, 157-158, 278 N.W. 799 (1938). Thus, the beneficiary of a trust may not maintain an action at law against third persons where the trustee is entitled to do so. 2 Restatement Trusts 2d, § 281(1), p 42; cf.,...
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PNC Bank, Nat'l Ass'n v. Goyette Mech. Co.
...to sue or be sued in its common name.”) (citations omitted); Fed.R.Civ.P. 17(b)(3)(A), and trusts, Apollinari v. Johnson, 104 Mich.App. 673, 675–76, 305 N.W.2d 565, 567 (1981) (holding that “the beneficiary of a trust may not maintain an action at law against third persons where the trustee......
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Slaughter v. Swicegood
...trustee for breach of fiduciary duty when successor trustee withdrew complaint filed on behalf of the trust); Appollinari v. Johnson, 104 Mich.App. 673, 305 N.W.2d 565 (1981) (holding that beneficiaries' guardian did not have standing to sue a third party because the trustee held title to t......
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Slaughter v. Swicegood, No. COA03-171 (N.C. App. 2/3/2003)
...trustee for breach of fiduciary duty when successor trustee withdrew complaint filed on behalf of the trust); Appollinari v. Johnson, 305 N.W.2d 565 (Mich. Ct. App. 1981) (holding that beneficiaries' guardian did not have standing to sue a third party because the trustee held title to trust......
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Taylor v. Maile
...(trust beneficiary may bring action for damages against third party for breach of trust agreement); Apollinari v. Johnson, 104 Mich.App. 673, 305 N.W.2d 565, 567 (1981) (beneficiary may sue third party without joining Id. at 745. Mr. Maile, on the other hand, contended that Harrigfeld v. Ha......
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Collection Agencies and the Unauthorized Practice of Law: the Divorce of Function from Form in Alco Collections, Inc. v. Poirier, 680 So. 2d 735 (la. Ct. App. 1996)
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