IN RE UPJOHN ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of UPJOHN.
NATIONAL CITY BANK OF THE MIDWEST,
TRUSTEE,
UNPUBLISHED
February 23, 2010
Petitioner-Appellee,
v
PHARMACIA & UPJOHN COMPANY, L.L.C.,
No. 278668
Kalamazoo Probate Court
LC No. 1956-020742-TT
Respondent-Appellant,
and
KALAMAZOO COMMUNITY FOUNDATION,
Respondent-Appellee,
and
ATTORNEY GENERAL/CONSUMER
PROTECTION AND CHARITABLE TRUSTS
DIVISION,
Intervening-Appellee.
Before: Murray, P.J., and Markey and Wilder, JJ.
PER CURIAM.
Respondent, Pharmacia & Upjohn Company, L.L.C., appeals as of right the Kalamazoo
probate court’s order in favor of the Kalamazoo Community Foundation (Foundation) and
Attorney General/Consumer Protection and Charitable Trusts Division (Attorney General) on the
parties’ cross-motions for summary disposition. The motions related to the trustee, National City
Bank of the Midwest’s petition for a declaration of rights of the William E. Upjohn Prizes Trust,
which the late Dr. William E. Upjohn established to reward employees of The Upjohn Company
for special accomplishments. We reverse.
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I.
Dr. Upjohn founded The Upjohn Company in Kalamazoo in 1886 and it was incorporated
under Michigan law in 1909. For nearly 50 years afterward, The Upjohn Company was a
privately or closely held company without publicly-traded stock.
On December 3, 1931, Dr. Upjohn executed a will and established the William E. Upjohn
Prizes Trust. Dr. Upjohn directed:
Section Number VII. At the end of five (5) years after my death, my
Trustees shall set aside and keep in separate trusts the following shares of
Common Stock of the Upjohn Company (as such shares are constituted at the
time of my death) or, in case said shares shall have been converted into other
property, then the proportionate and equitable amounts of such other property, for
the following purposes:
***
(j) In a separate trust, two thousand (2,000) shares, the entire net income
of which shall be available annually to The Upjohn Company for use as prizes for
special accomplishment of any employee of The Upjohn Company, preferably
two or more in each year, to be known as “the William E. Upjohn prizes”. Any
income in any year which is not awarded as prizes by The Upjohn Company shall
be paid to the BANK OF KALAMAZOO, AS TRUSTEE, for the benefit of the
KALAMAZOO FOUNDATION, and at such time as the Board of Directors of
The Upjohn Company signify by a majority vote that the income is no longer
desired, or in case The Upjohn Company should cease to exist, or cease to
function, the principal and any undistributed income shall be paid to the BANK
OF KALAMAZOO,1 AS TRUSTEE, for the benefit of the KALAMAZOO
FOUNDATION. [Footnote added.]
Dr. Upjohn subsequently died in 1932. Following a petition by the executors of Dr. Upjohn’s
estate in 1937, the probate court entered an order appointing the trustees and transferring assets
for the administration of the prizes trust. The probate court’s order was not appealed and, from
1938 to 2003, the corpus of the prizes trust was distributed to employees of The Upjohn
Company, with any remainder distributed to the Foundation.
In the fall of 1958, the board of directors of The Upjohn Company (a Michigan
corporation) decided to offer the company’s stock to the public. Consequently, a new
corporation, The Upjohn Company of Delaware, Inc., was formed. Thereafter, The Upjohn
Company merged into The Upjohn Company of Delaware, Inc. The Agreement and Plan of
Merger provided that The Upjohn Company of Delaware, Inc., would be the surviving
corporation. It also provided that “the separate existence of Upjohn Michigan shall cease.”
1
The eventual successor to the Bank of Kalamazoo, as trustee of the prizes trust, was National
City Bank.
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Shortly after the merger, The Upjohn Company of Delaware, Inc., changed its name to The
Upjohn Company.
On January 8, 1962, the trustee filed the annual accounting in the probate court and a
hearing was scheduled. On January 25, 1962, the Attorney General intervened in the Upjohn
Estate on behalf of the people in the state of Michigan and all interested beneficiaries. The
Attorney General requested copies of all petitions and notice of hearings filed in the estate
thereafter. On February 8, 1962, the probate court entered an order allowing the trustee’s annual
accounting.
The corpus of the prizes trust continued to grow and, in the 1990s and early 2000s, The
Upjohn Company (now a Delaware corporation) underwent further changes to its corporate
structure. In August 1995, Bushwood Subsidiary, Inc., changed its name to Pharmacia &
Upjohn Subsidiary, Inc., and merged into The Upjohn Company. At the same time, Bushwood,
Inc., changed its name to Pharmacia & Upjohn, Inc., and became a parent company of The
Upjohn Company. The Upjohn Company’s shares were converted to the right to receive shares
of Pharmacia & Upjohn, Inc.
On May 10, 1996, Pharmacia, Inc., a Minnesota corporation, merged into The Upjohn
Company. The Upjohn Company was the surviving corporation. On June 3, 1996, The Upjohn
Company changed its name to “Pharmacia & Upjohn Company.”
On June 14, 1996, the trustee filed a petition with the probate court, requesting an
interpretation of the will’s trust provisions. Specifically, the trustee noted that, as a result of the
recent merger, the employees eligible for the prizes had increased from 20,000 to over 30,000,
and those employees work in various places, not just Kalamazoo. The trustee questioned
whether the recipients could be reimbursed for expenses incurred for traveling to the award
presentation.
At a subsequent hearing, counsel for the Foundation raised the issue whether The Upjohn
Company had ceased to exist, which would terminate the prizes trust. However, counsel
ultimately stated, “It is my understanding that what happened is that a holding company was
formed when The Upjohn Company stock was purchased by that holding company and the
Pharmacia stock was purchased by that holding company. So that, in fact, The Upjohn Company
does still exist.” Thereafter, on August 14, 1996, the probate court entered an order authorizing
the use of a portion of the income of the prizes trust to reimburse travel expenses.
In the years following the probate court’s order, The Upjohn Company, which was then
known as the Pharmacia & Upjohn Company, underwent further changes to its corporate
structure. On March 31, 2000, Pharmacia & Upjohn Company’s parent corporation, Pharmacia
& Upjohn, Inc., engaged a merger. MP Sub, Inc., a Delaware corporation wholly owned by
Monsanto Company, merged into Pharmacia & Upjohn, Inc., a Delaware corporation.
Pharmacia & Upjohn, Inc., was the surviving corporation. As a result of the merger, Pharmacia
& Upjohn, Inc., became a wholly-owned subsidiary of Monsanto Company. Meanwhile,
Pharmacia & Upjohn Company remained a wholly-owned subsidiary of Pharmacia & Upjohn,
Inc. Next, Monsanto Company changed its name to Pharmacia Corporation.
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Effective April 16, 2003, Pfizer Acquisition Sub Corp., a wholly-owned subsidiary of
Pfizer, merged into Pharmacia Corporation. Pharmacia Corporation was the surviving
corporation. As a result of the merger, Pharmacia became a wholly owned subsidiary of Pfizer.
On December 22, 2003, the trustee filed a petition in the probate court, requesting an
interpretation regarding whether The Upjohn Company continued to exist or function.
According to Dr. Upjohn’s will, if The Upjohn Company ceased to exist or ceased to function,
the Foundation would be entitled to the principal and undistributed income. While the petition
was pending, on August 13, 2004, Pharmacia & Upjohn Company, L.L.C. (a Delaware limited
liability company) was created. Thereafter, Pharmacia & Upjohn Company converted to
Pharmacia & Upjohn Company, L.L.C.
After the parties engaged in substantial discovery pursuant to the trustee’s petition,
Pharmacia & Upjohn Company, L.L.C., the Foundation, and the Attorney General filed crossmotions for summary disposition. The Foundation and the Attorney General argued that The
Upjohn Company, identified by Dr. Upjohn in the will, no longer existed or functioned. The
Foundation and Attorney General further argued that the prizes trust created by Dr. Upjohn’s
will was an honorary trust, because it was created for a specific noncharitable purpose (to
provide an annual bonus to a select number of Upjohn employees), and because there were no
definite or definitely ascertainable beneficiaries. Thus, the Foundation and Attorney General
argued that, as an honorary trust, the prizes trust had exceeded its statutory period of validity, 21
years, and was no longer valid. Pharmacia & Upjohn Company, L.L.C., contended that The
Upjohn Company continued to exist and to function as part of the Pfizer family of companies.
On May 23, 2007, the probate court issued its ruling from the bench. The probate court
noted that The Upjohn Company was not in the phone book and it appeared that one could not
purchase shares of the company. Thus, the probate court concluded that The Upjohn Company
had ceased to exist and to function. The probate court then concluded that the prizes trust was an
honorary trust and no longer valid. Accordingly, the probate court granted the Foundation’s
motion for summary disposition, but denied Pharmacia & Upjohn Company, L.L.C.’s motion.
The instant appeal followed.
II.
In Pharmacia & Upjohn Company, L.L.C.’s first claims on appeal, it argues that: 1) the
Foundation and Attorney General’s arguments that The Upjohn Company ceased to exist and
function are barred by res judicata, and alternately, 2) The Upjohn Company continues to exist
and function even if the Foundation and Attorney General’s arguments are not barred by res
judicata. We agree with Pharmacia & Upjohn Company, L.L.C.’s arguments in both respects.
This Court reviews a court’s application of a legal doctrine, such as res judicata, Washington v
Sinai Hosp of Greater Detroit, 478 Mich 412, 417; 733 NW2d 755 (2007), and the court’s
decision to grant summary disposition de novo, Schaendorf v Consumers Energy Co, 275 Mich
App 507, 509; 739 NW2d 402 (2007).
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A. 1958 Merger
The Foundation and Attorney General argue that The Upjohn Company ceased to exist in
1958 when it merged into The Upjohn Company of Delaware, Inc. In opposition, Pharmacia and
Upjohn Company, L.L.C., claims that the argument is barred by res judicata. Because we agree
with Pharmacia and Upjohn Company, L.L.C., we decline to address whether the 1958 merger
affected The Upjohn Company’s corporate existence or functionality.
Res judicata bars a subsequent action if (1) the prior action was decided on the merits, (2)
the decree in the prior action was a final decision, (3) the matter contested in the second case was
or could have been resolved in the first, and (4) both actions involved the same parties or their
privies. Richards v Tibaldi, 272 Mich App 522, 531; 726 NW2d 770 (2006).
As we noted, supra, the Attorney General intervened in the Estate of Upjohn in 1962
during probate proceedings to allow the trustee’s annual accounting. Ultimately, the probate
court held a hearing and entered an order, which was decided on the merits and was final. Thus,
the first and second elements of res judicata are satisfied. Richards, supra, 272 Mich App at
531. The trustee’s annual accounting arguably included information regarding the funds in the
prizes trust and amounts paid pursuant to the trust. As an intervening party, the Attorney
General could have objected to those payments and argued that The Upjohn Company had
ceased to exist or function, but it failed to do so. Likewise, as an interested party, the Foundation
could have also objected, but there is no evidence of such an objection in the record. Therefore,
the third element of res judicata is satisfied. Id. The Foundation and Attorney General were
involved in both the 1962 action and the instant petition to interpret the will. Consequently, the
fourth element of res judicata requiring both actions to involve the same parties is satisfied and
res judicata bars the Foundation and Attorney General’s argument that The Upjohn Company
ceased to exist following the 1958 merger. Id.
B. 1990s Transactions
The Foundation and Attorney General also argue that The Upjohn Company ceased to
exist following: 1) the 1995 merger of Pharmacia & Upjohn Subsidiary, Inc., into The Upjohn
Company, 2) the 1995 conversion of outstanding shares of The Upjohn Company to the right to
receive shares of Pharmacia & Upjohn, Inc, and 3) the May 1996 name change of The Upjohn
Company to Pharmacia & Upjohn Company. Again, consistent with Pharmacia and Upjohn
Company, L.L.C.’s argument, this Court need not address whether The Upjohn Company ceased
to exist as a result of the 1995 and 1996 corporate transactions because those arguments are
barred by res judicata.
The parties apparently do not contest that the June 1996 petition was decided on the
merits and the probate court’s order constituted a final decision. Thus, the first and second
elements of res judicata are satisfied. Richards, supra, 272 Mich App at 531. As interested
parties who received notice and an opportunity to be heard at the 1996 hearing, the Foundation
and Attorney General could have argued that The Upjohn Company ceased to exist or function
as a result of either the 1995 merger, 1995 stock conversion, or 1996 name change, but the
parties failed to do so. The Foundation even conceded, “The Upjohn Company does still exist.”
Therefore, the third element of res judicata is satisfied. Id. Finally, the same parties were
involved in both the 1996 petition and the instant petition to interpret the will. The fourth
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element of res judicata is satisfied and, again, res judicata bars the Foundation and Attorney
General’s arguments that The Upjohn Company ceased to exist following the 1995 merger, 1995
stock conversion, or 1996 name change. Id.
C. 2000s Transactions
As we noted earlier, Pharmacia & Upjohn Company, L.L.C., maintains that The Upjohn
Company continued to exist and function throughout both the corporate transactions preceding
the 1996 order and those following that order. The Foundation counters that, even if res judicata
bars its arguments that The Upjohn Company ceased to exist and function as a result of corporate
transactions prior to the 1996 order, The Upjohn Company ceased to exist and function as a
result of subsequent corporate transactions. Incorporating our res judicata analysis, supra, The
Upjohn Company contemplated in Dr. Upjohn’s must be treated as having continued existence
and functionality in the form of Pharmacia & Upjohn Company following the 1996 order and the
question remains whether it ceased to exist or function following the subsequent corporate
transactions. We conclude that it did not.
1. 2000 Merger
“A corporation is a creature of statute, unable to exist except by the force of express law.”
Handley v Wyandotte Chemicals Corp, 118 Mich App 423, 425; 325 NW2d 447 (1982).
“Consequently, the effect of a merger or consolidation on the existing constituent corporations
depends upon the terms of the statute under which the merger or consolidation is accomplished.”
Id.
MCL 450.1724 provides, in relevant part:
(1) When a merger takes effect, all of the following apply:
(a) Every other corporation party to the merger merges into the surviving
corporation and the separate existence of every corporation party to the merger
except the surviving corporation ceases.
Very similarly, under Delaware Law, 8 Del C § 259(a) provides, in relevant part:
When any merger or consolidation shall have become effective under this chapter,
for all purposes of the laws of this State the separate existence of all the
constituent corporations, or of all such constituent corporations except the one
into which the other or others of such constituent corporations have been merged,
as the case may be, shall cease and the constituent corporations shall become a
new corporation, or be merged into 1 of such corporations, as the case may be,
possessing all the rights, privileges, powers and franchises as well of a public as
of a private nature, and being subject to all the restrictions, disabilities and duties
of each of such corporations so merged or consolidated . . . .
Under these statutes, the separate existence of MP Sub, Inc., ceased when it merged into
Pharmacia & Upjohn, Inc., in 2000. MCL 450.1724; 8 Del C § 259(a). Also under the statutes
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and the certificate of merger, Pharmacia & Upjohn, Inc., was the surviving corporation and it
continued to exist.
Pharmacia & Upjohn Company was unaffected by the merger between MP Sub, Inc., and
Pharmacia & Upjohn, Inc. Generally, parent and subsidiary corporations are separate and
distinct entities. Seasword v Hilti, Inc (After Remand), 449 Mich 542, 547, 537 NW2d 221
(1995). Pharmacia & Upjohn Company must have been a “‘a mere instrumentality’” of
Pharmacia & Upjohn, Inc., for “its separate corporate existence [to] be disregarded.” Id., quoting
Maki v Copper Range Co, 121 Mich App 518, 524; 328 NW2d 430 (1982). Pharmacia &
Upjohn Company, L.L.C., cites MCL 600.2140 for the proposition that Pharmacia & Upjohn
Company was not a mere instrumentality. MCL 600.2140 provides:
In any suit or proceeding, civil or criminal hereafter instituted in any of the courts
of this state, wherein it shall become material or necessary to prove the
incorporation of any company or corporation, or the existence of any joint stock
company or association, whether the same be a foreign or domestic corporation,
company, or association, evidence that such corporation, company, or association
is doing business under a certain name shall be prima facie proof of its due
incorporation or existence pursuant to law, and of its name.
Even if the fact that Pharmacia and Upjohn Company was doing business under that name
following the 2000 merger constitutes prima facie proof of its existence, other facts in the record
suggest that it was not a mere instrumentality. Pharmacia & Upjohn Company was an
independent operating company that manufactured products, owned assets and research facilities,
and held patents. The company was headquartered in New Jersey and had home offices in
Kalamazoo. Susan Grant, a paralegal, stated at her deposition that she maintained minute books
for Pharmacia & Upjohn Company. She also recalled that the company had a board of directors
and officers, and there was evidence that it employed thousands of employees who enjoyed their
own benefits plan. Grant admitted that many Pharmacia & Upjohn Company directors and
officers served in other capacities for Pfizer, but the United States Supreme Court has stated that
“‘directors and officers holding positions with a parent and its subsidiary can and do ‘change
hats’ to represent the two corporations separately, despite their common ownership.”’ United
States v Bestfoods, 524 US 51, 69; 118 S Ct 1876; 141 L Ed 2d 43 (1998). In light of these facts,
the separate existence of Pharmacia & Upjohn Company following the 2000 merger should not
be disregarded.
2. 2000 Name Change
“An amendment of the articles of incorporation changing the corporation’s name does not
divest a stockholder of an equity interest in the successor corporation nor change the identity of
the corporation; the amendment does not have any effect on the corporation’s property, rights, or
liabilities.” 18 Am Jur 2d, Corporations, § 97; see also Union Guardian Trust Co v Kowalsky,
267 Mich 110, 113; 255 NW 171 (1934) (the amendment in the articles of incorporation, which
changed the name of the company, did not transfer any rights from one company to another).
Guided by this authority, the identity of Pharmacia and Upjohn Company’s grandparent
company, Monsanto Company, did not change when it changed its name to Pharmacia
Corporation. It follows, therefore, that the name change also did not change the identity of the
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grandparent company’s subsidiary, Pharmacia & Upjohn, Inc., or that subsidiary’s subsidiary,
Pharmacia and Upjohn Company.
3. 2003 Merger
The separate existence of Pfizer Acquisition Sub Corp., ceased when it merged into
Pharmacia Corporation. MCL 450.1724; see also 8 Del C § 259(a). Just like Pharmacia &
Upjohn, Inc., in the 2000 merger, Pharmacia Corporation was the surviving corporation and it
continued to exist after the 2003 merger. Id. For this merger to affect the corporate existence of
Pharmacia Corporation’s subsidiary’s subsidiary, Pharmacia & Upjohn Company, it must have
become a mere instrumentality of its parent. We concluded above that Pharmacia and Upjohn
Company was a separate and distinct entity from its parent corporation in 2000. No evidence in
the record suggests any changes in the functioning of the company between the 2000 merger and
the 2003 merger. It follows that Pharmacia and Upjohn Company was not a mere
instrumentality after the 2003 merger and its separate existence at that time should not be
disregarded.
4. 2004 Conversion
The Delaware Statute that was in effect at the time of Pharmacia and Upjohn Company’s
conversion to Pharmacia & Upjohn Company, L.L.C., provided:2
(a) A corporation of this State may, upon the authorization of such conversion in
accordance with this section, convert to a limited liability company, partnership
(whether general (including a limited liability partnership) or limited (including a
limited liability limited partnership)) or statutory trust of this State.
***
(c) Upon the filing of a certificate of conversion in accordance with subsection (b)
of this section, the filing of any document required to be filed by the statute
governing the formation of the entity into which the corporation is converting and
payment to the Secretary of State of all fees prescribed under this title, the
Secretary of State shall certify that the corporation has filed all documents and
paid all fees required by this title, and thereupon the corporation shall cease to
exist as a corporation of this State at the time the certificate of conversion
becomes effective in accordance with § 103 of this title. Such certificate of the
Secretary of State shall be prima facie evidence of the conversion by such
corporation.
2
This statute has since been amended, but the amended version has a similar effect. See 8 Del C
§ 266(h) (“When a corporation has been converted to another entity or business form pursuant to
this section, the other entity or business form shall, for all purposes of the laws of the State of
Delaware, be deemed to be the same entity as the corporation.”).
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(d) The conversion of a corporation pursuant to a certificate of conversion under
this section shall not be deemed to affect any obligations or liabilities of the
corporation incurred prior to such conversion or the personal liability of any
person incurred prior to such conversion.
(e) After the time the certificate of conversion becomes effective the corporation
shall continue to exist as a limited liability company, partnership (whether general
(including a limited liability partnership) or limited (including a limited liability
limited partnership)) or statutory trust of this State, and the laws of this State shall
apply to the entity to the same extent as prior to such time.
(f) Unless otherwise provided in a resolution of conversion adopted in accordance
with this section, the converting corporation shall not be required to wind up its
affairs or pay its liabilities and distribute its assets, and the conversion shall not
constitute a dissolution of such corporation and shall constitute a continuation of
the existence of the converting corporation in the form of the applicable other
entity of this State. [8 Del C § 266 (emphasis added).]
Although 8 Del C § 266 provides that the corporation, here the Pharmacia and Upjohn
Company, shall cease to exist as a corporation, it also provides that the conversion shall
constitute a continuation of the existence of the converting corporation in the form of the new
entity, here Pharmacia and Upjohn Company, L.L.C. In light of this statute, we conclude that
Pharmacia and Upjohn Company did not cease to exist when it converted to a limited liability
company. Cf. Lucent Technologies, Inc v Tatung Co, unpublished memorandum opinion of the
Southern District of New York, February 20, 2003 (Docket No. 02 Civ. 8107); JP Morgan Trust
Co v Mid-America Pipeline Co, 413 F Supp 2d 1244, 1258-1259 (D Kan, 2006).
Furthermore, the facts in the lower court record suggest that the Pharmacia and Upjohn
Company did not cease to function when it converted to a limited liability company. Random
House Webster’s College Dictionary (2001) defines “function” as “to work; operate.” The
record shows that Pharmacia and Upjohn Company was an independent operating and
manufacturing company, owning assets, researching and holidng products until the 2004
conversion to a limited liability company. Grant stated that no substantial changes followed the
2004 conversion to a limited liability company and explained that the conversion was for tax
purposes only. Accordingly, we conclude that the probate court erred in its determination
regarding whether The Upjohn Company ceased to exist or function under Dr. Upjohn’s will.
III.
In Pharmacia & Upjohn Company, L.L.C.’s last claim on appeal, it argues that the
probate court erred when it concluded that the prizes trust is no longer valid and ruled in favor of
the Foundation and Attorney General. Pharmacia & Upjohn Company, L.L.C. maintains that
any argument that the trust is invalid under 21-year rule against perpetuities is barred by res
judicata. We agree. Once again, this Court reviews de novo a court’s application of a legal
doctrine and the decision to grant summary disposition. Washington, supra, 478 Mich at 417;
Schaendorf, supra, 275 Mich App 509.
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The Michigan Supreme Court has barred subsequent collateral action seeking to declare a
trust void where: 1) the probate court previously issued an order approving an executor’s final
accounting and ordering that the residue of the estate be assigned to a testamentary trustee, and
2) no appeal is taken from that order. See Cleveland v Second Nat’l Bank & Trust Co, 354 Mich
202, 218, 221; NW2d (1958); Chapin v Chapin, 229 Mich 515, 533; NW2d (1924). Similarly,
here, in 1937, the probate court entered an order appointing the trustees and transferring assets
for the administration of the prizes trust. The Foundation was a party to the 1937 proceedings
and did not appeal the probate court’s order. Following Cleveland and Chapin, the Foundation’s
argument, that the trust is invalid under the rule against perpetuities, is barred by res judicata.
The Attorney General argues that, unlike the Foundation, it was not a party to the 1937
proceedings and should not be precluded from raising the argument at this time. For res judicata
to apply, a party to a subsequent action need not have been a party to the prior action if that party
was in privity with a party to the prior action. Richards, supra, 272 Mich App at 531.
The outer limit of the doctrine traditionally requires both a “substantial identity of
interests” and a “working functional relationship” in which the interests of the
nonparty are presented and protected by the party in the litigation. [Durant v
Michigan, 456 Mich 175, 122; 566 NW2d 272 (1997).]
The Foundation and the Attorney General arguably had different interests throughout the
administration of this trust. The Foundation was interested in protecting its individual rights to
the remainder of the prizes trust whereas the Attorney General was more generally interested in
protecting any right or interest of the state of Michigan or its people. Even if the parties were not
in privity in 1937, the Attorney General intervened in the Estate of Upjohn in 1962. We
concluded above that the 1962 order was on the merits and final. Given that the annual
accounting would have included information regarding the prizes trust, the Attorney General
could have objected to the trust and argued that it was invalid under the rule against perpetuities.
However, the Attorney General failed to do so. As a party with notice and opportunity to be
heard in the 1962 action, the Attorney General is now barred from arguing that the prizes trust is
invalid in the instant action. Richards, supra, 272 Mich App at 531. The probate court erred
when it granted the Foundation’s motion for summary disposition.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
Pharmacia & Upjohn Company, L.L.C., being the prevailing party, may tax costs
pursuant to MCR 7.219.
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
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