In re Gerald L. Pollack Trust

• Decision Date: 29 January 2015
• Docket Number: 310846,310844,318883.,Docket Nos. 309796
• Citation: 309 Mich.App. 125,867 N.W.2d 884
• Parties: In re GERALD L. POLLACK TRUST.
• Court: Court of Appeal of Michigan — District of US

309 Mich.App. 125

867 N.W.2d 884

In re GERALD L. POLLACK TRUST.

Docket Nos. 309796

310844

310846

318883.

Court of Appeals of Michigan.

Submitted Jan. 7, 2015, at Detroit.

Decided Jan. 29, 2015, at 9:00 a.m.

Allan Falk, PC, Okemos (by Allan Falk), and Mantese Honigman Rossman and Williamson, PC (by Gerard Mantese, Troy and David Hansma ), for Loren Pollack.

Barron, Rosenberg, Mayoras & Mayoras, PC, Troy (by Andrew W. Mayoras ), for Ronald M. Barron.

Dickinson Wright PLLC, Troy, (by Judith Fertel Layne and Kimberly J. Ruppel ) for JPMorgan Chase.

Prince Law Firm (by Shaheen I. Imami, Patricia Gormely Prince, Bloomfield Hills and Amber N. Atkins ) for Cheryl Pollack.

Allan Falk, PC, Okemos (by Allan Falk ), for Loren and Leslie Pollack.

Mark Granzotto, PC, Royal Oak (by Mark Granzotto ), for Leslie Pollack.

Before: FORT HOOD, P.J., and HOEKSTRA and O'CONNELL, JJ.

Opinion

FORT HOOD, P.J.

In Docket No. 309796, petitioner Loren Pollack appeals as of right an order granting cotrustee Ronald M. Barron's motion for summary disposition of Loren's petition to set aside the Gerald L. Pollack Trust (the Trust or the October Trust), entered on March 15, 2012. In Docket No. 310844, Loren and petitioner Leslie Pollack appeal as of right an order granting Cheryl Pollack's motion for summary disposition on Loren and Leslie's petition to set aside Gerald L. Pollack's will (the Will or the October Will), entered on May 29, 2012. In Docket No. 310846, Loren and Leslie appeal as of right an order granting Barron's motion for summary disposition regarding Leslie's petition to set aside the Trust, Loren's amended petition to modify or reform the Trust, and Leslie's petition to modify or reform the Trust, entered on May 29, 2012. In Docket No. 318883, Loren and Leslie appeal as of right an order granting Barron's motion for summary disposition on Loren and Leslie's petition for removal of Barron as cotrustee of the Trust, entered on October 10, 2013. The four appeals were consolidated to advance the efficient administration of the appellate process.¹ We affirm.

I. UNDERLYING FACTS

These cases involve extremely contentious probate court litigation arising out of the death of Gerald L. Pollack on June 27, 2009, following a protracted battle with brain cancer

. Gerald was the owner and director of Gerald L. Pollack & Associates, Inc. (GLP), GLP Investment Services (Investment Services) and GLP Specialty Services (Specialty Services). GLP and Investment Services are investment firms that specialize in selling annuities, insurance products, and securities to public schools and school systems in Michigan. GLP and Investment Services are the primary assets of Gerald's estate. Gerald was survived by his second wife, Cheryl. Justin Pollack is the child of Gerald and Cheryl. Loren, Leslie, Lisa Chaben, and Lori Pollack are Gerald's children from his first marriage. Barron has served as general legal counsel to GLP and Investment Services since the 1980s and was a personal friend of Gerald's. Barron and JPMorgan Chase (JPMC) are cotrustees of the trust at issue in this case and copersonal representatives of Gerald's estate. According to Loren, Loren and a GLP employee named Alex Kocoves were part of Gerald's succession plan for his businesses; Loren and Kocoves were each sold GLP stock by Gerald.

Gerald was diagnosed with brain cancer

in the summer of 2008. Following this diagnosis, Barron wrote an August 5, 2008 letter to Gerald recognizing that Loren and Kocoves would continue to comanage GLP after Gerald's death, that Cheryl and each of Gerald's children would share in the profitability of the businesses, and that Cheryl and each of Gerald's children would receive a portion of the ownership and income from the businesses. In September 2008, Gerald executed a will (the September Will) and a trust (the September Trust). Barron drafted both of these documents at Gerald's direction and with input from Gerald. According to Loren, the September Will and the September Trust were the culmination of a lengthy and detailed process of preparation by Gerald for the continued well-being of his family and businesses following his death, and both September documents carried out Gerald's intent as set forth in numerous other documents prepared as part of his estate plan. According to Barron, however, the August 5, 2008 letter was merely a temporary “Band–Aid” until formal estate planning documents could be prepared; likewise, the September estate planning documents were merely interim documents prepared until proper and permanent documents could be put in place.

In October 2008, attorney Charles Nida was hired to prepare a second will and trust for Gerald. According to Loren, it was Barron who recruited Nida, and Gerald had no contact with Nida until the October Will and the October Trust were executed on October 30, 2008. Loren alleged that Nida took direction from Barron or other attorneys at Barron's law firm. Barron denied Loren's allegations, and asserted that Nida had been in contact with Gerald before the execution of the October estate planning documents. Nida had conversations not only with Barron but also with Gerald's former estate planning attorney, Don L. Rosenberg, and Gerald's personal banker and former cotrustee, David Clark. On October 30, 2008, Nida visited with Gerald at Gerald's home. The estate documents were already finalized at that point, and Nida reviewed a written summary of the documents with Gerald. Gerald executed the October Will and the October Trust on that date.

Loren alleges that the October Trust differs significantly from the September Trust; in particular, Gerald's children do not receive any immediate benefit from the October Trust until Cheryl's death; Cheryl's life expectancy is 20 years. Also, Loren contends, the October Trust does not provide for the succession planning desired by Gerald in that it does not distribute shares of GLP to Loren or provide for the continued operation of GLP by Loren and Kocoves. Rather, the October Trust directs Gerald's assets to a marital share for Cheryl's benefit up to $10 million; until this marital share is completely funded, or Cheryl dies, Gerald's children may receive nothing. Even after Cheryl dies, Loren would receive only a beneficial share of the trust corpus rather than stock in GLP.

Four actions in relation to Gerald's Will and Trust were filed in the trial court and form the basis of this appeal. The trial court ultimately granted summary disposition in each case, and dismissed the actions. Petitioners now appeal.

II. DOCKET NO. 309796—STATUTE OF LIMITATIONS

In Docket No. 309796, Loren argues that the trial court erred by granting Barron's motion for summary disposition on the basis of the expiration of the statute of limitations. We disagree.

“This Court reviews de novo a trial court's decision on a motion for summary disposition.” Hackel v. Macomb Comm., 298 Mich.App. 311, 315, 826 N.W.2d 753 (2012). Summary disposition may be granted under MCR 2.116(C)(7) when a statute of limitations bars a claim. Prins v. Mich. State Police, 291 Mich.App. 586, 589, 805 N.W.2d 619 (2011). If the facts are not in dispute, the issue whether a claim is barred by the applicable statute of limitations presents a question of law that is reviewed de novo. Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378, 386, 738 N.W.2d 664 (2007). Questions of statutory interpretation are likewise reviewed de novo. Id. “If the language in a statute is clear and unambiguous, this Court assumes that the Legislature intended its plain meaning, and the statute must be enforced as written. This Court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.”

Bay City v. Bay Co. Treasurer, 292 Mich.App. 156, 166–167, 807 N.W.2d 892 (2011) (quotation marks and citations omitted). In addition, this Court “review[s] de novo constitutional issues and any other questions of law that are raised on appeal.” Cummins v. Robinson Twp., 283 Mich.App. 677, 690, 770 N.W.2d 421 (2009).

The trial court properly granted Barron's motion for summary disposition because Loren's petition to set aside the October Trust was barred by the statute of limitations in the Michigan Trust Code (MTC).

The MTC, MCL 700.7101 et seq., which concerns trusts, is Article VII of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq.; the MTC became effective on April 1, 2010, which was 10 years after EPIC itself went into effect. See MCL 700.7101 ; MCL 700.7102 ; 2009 PA 46, 1998 PA 386; Indep. Bank v. Hammel Assoc., LLC, 301 Mich.App. 502, 509, 836 N.W.2d 737 (2013). MCL 700.7604(1) is a provision of the MTC that prescribes limitation periods for bringing a challenge to the validity of a trust:

A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of the following:

(a) Two years after the settlor's death.

(b) Six months after the trustee sent the person a notice informing the person of all of the following:

(i ) The trust's existence.

(ii ) The date of the trust instrument.

(iii ) The date of any amendments known to the trustee.

(iv ) A copy of relevant portions of the terms of the trust that describe or affect the person's interest in the trust, if any.

(v ) The settlor's name.

(vi ) The trustee's name and address.

(vii ) The time allowed for commencing a proceeding.

Therefore, under the MTC, a challenge to the validity of a trust must be brought within two years after the settlor's death or six months after the provision of a notice containing statutorily prescribed information, whichever is earlier.

It is undisputed that, if the statute of limitations in MCL 700.7604 (1) applies, then Loren's petition was not timely filed. The settlor, Gerald, died on June 27, 2009. On May 6, 2010, the trustees sent to Loren and the other beneficiaries a written notice containing all the...