IN THE MATTER OF CONSTANTINE TRUED LIVING TRUST
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In re the Matter of Constantine Trued Living Trust.
PAUL T. PETERSON,
UNPUBLISHED
January 29, 2002
Petitioner-Appellant,
V
KATHLEEN TRUED, Successor Trustee of the
CONSTANTINE TRUED LIVING TRUST
Nos. 223867, 226665
Macomb Probate Court
LC No. 97-153354-TI
Respondent-Appellee.
Before: Saad, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
In these consolidated appeals, petitioner appeals by right in Docket No. 223867 the order
of the Macomb probate court dismissing objections and allowing account of respondent
successor trustee and in Docket No. 226665 petitioner appeals by right the probate court’s order
denying his petition to surcharge respondent for his legal fees in obtaining and objecting to
respondent’s account. We affirm in both cases.
The successor trustee did not waive the affirmative defenses of estoppel and laches under
MCR 2.111(F)(2) and MCR 2.111(F)(3)(a), as applied to probate proceedings by MCR
5.001(A). Estoppel and laches, although affirmative defenses, were not waived because the
original petition for an accounting and subsequent objections to the account of respondent were
not pleadings to which a responsive pleading is required by applicable statutes or court rules.
The probate court did not clearly err in dismissing petitioner’s objections based on laches
and thus did not abuse its discretion allowing respondent’s account.1 In Re Rice Estate, 138
1
We reject petitioner’s claim that the probate court erred by sua sponte applying estoppel and
laches. The record indicates petitioner was on notice concerning the application of these
equitable doctrines and was given adequate opportunity to be heard. Moreover, the issue has not
been preserved for appeal by briefing in compliance with the court rules and citation to authority.
MCR 7.212(C)(7); Thomas v McGinnis, 239 Mich App 636, 649; 609 NW2d 222 (2000).
-1-
Mich App 261; 360 NW2d 587 (1984); In re Ach Estate, 7 Mich App 228; 151 NW2d 363
(1967). Evidence clearly established that respondent trustee “freely spent from trust funds,
family funds, and personal funds not only for the continued educational expenses of the
beneficiaries but also for their general welfare.” Further, it is undisputed that successor trustee,
beneficiary-petitioner, and the prime-mover and sole witness supporting the petition and
objections to the account (the father of the beneficiaries and former spouse of respondent) lived
together as a family unit from the appointment of the successor trustee after settlor’s death in
April 1990 through at least the end of 1992. Respondent testified that after her February 1993
divorce from petitioner’s father she continued to live in the marital home through the summer of
1993. Thus, the probate court correctly found that “all parties were aware of expenditures made
during the experience years, both to the educational facilities and for personal expenses incurred
by the beneficiaries.”
Respondent’s testimony that petitioner never objected to any distributions from the trust
estate to him or on his behalf was unrebutted. Further, the probate court specifically noted the
void in the testimony created because petitioner failed to testify and the only other beneficiary,
petitioner’s brother, failed to appear in these proceedings. Thus, the probate court did not clearly
err in finding that “no formal request for an accounting was made until the petition was filed at
this Court in March of 1997.” Moreover, the probate court noted that the beneficiaries had long
since reached the age of legal responsibility before the date of the petition for an accounting.
Not only was petitioner aware for several years of respondent’s expenditures, he waited
over six years to take formal action to seek an accounting. Moreover, petitioner waited over two
years after he knew the trust corpus was exhausted before petitioning for an accounting in
probate court. In the meantime, respondent continued to fund petitioner’s extended education
from her own funds.2 Furthermore, the probate court did not clearly err in applying laches and
its application of laches to reach a just and equitable result was not an abuse of discretion. City
of Jackson v Thompson-McCully Co, 239 Mich App 482, 492; 608 NW2d 531 (2000); In re Ach
Estate, supra.
The probate court did not err by denying petitioner’s request to personally assess his
attorney fees against respondent because attorney fees were not expressly authorized by statute
or court rule. In Re Thomas Estate, 211 Mich App 594, 536 NW2d 579 (1995). Here, no trust
fund remained against which to assess attorney fees. Further, petitioner simply provides no
precedential authority or meritorious argument that an exception to the American rule applies in
this case. Radenbaugh v Farm Bureau Gen Ins Co of Michigan, 240 Mich App 134, 152; 610
NW2d 272 (2000).
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Peter D. O’Connell
2
Indeed, it appears to this Court that respondent acted with prudence and in good faith while
executing her duties as successor trustee.
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
