IN RE FRANCES A FOX REVOCABLE LIVING TRUST
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STATE OF MICHIGAN
COURT OF APPEALS
IN RE FRANCES A. FOX REVOCABLE LIVING
TRUST, a/k/a FOX TRUST.
MARY F. KUS, Trustee,
UNPUBLISHED
November 16, 2010
Appellee,
v
No. 292879
Clinton Probate Court
LC No. 08-026825-TV
CYNTHIA FOX-JANKE,
Appellant.
Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.
PER CURIAM.
Appellant appeals as of right from the probate court’s order approving the final
accounting of the Frances A. Fox Revocable Living Trust (trust). We affirm.
The grantor of the trust passed away in June 2006. Appellant and appellee, two of the
grantor’s daughters, were originally named as co-trustees and they retained the same counsel.
After differences arose in management and decisions regarding distribution, appellee hired
separate counsel to represent her in her capacity as co-trustee in July 2008. On October 8, 2008,
appellee was named sole trustee. The probate court approved the final accounting and
distribution plan, and ordered that appellee was entitled to have her attorney fees paid from the
trust.
Appellant first argues on appeal appellee was not entitled to have her attorney fees paid
from the trust for services rendered prior to October 8, 2008, because her decision to hire
separate counsel was in violation of the trust agreement. We disagree.
The findings of fact underlying an award of attorney fees are reviewed for clear error,
Taylor v Currie, 277 Mich App 85, 99; 743 NW2d 571 (2007), while underlying questions of
law are reviewed de novo, Hines v Volkswagen of America, Inc, 265 Mich App 432, 438; 695
NW2d 84 (2005), and the decision whether to award attorney fees and the determination of the
reasonableness of the fees are within the trial court’s discretion and will be reviewed on appeal
for an abuse of discretion, Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008); In re
Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). A finding is clearly
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erroneous when, although there is evidence to support it, the reviewing court on the entire record
is left with a definite and firm conviction that a mistake was made. Marilyn Froling Revocable
Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 296; 760 NW2d 234, (2009).
An abuse of discretion occurred when the decision was outside the range of reasonable and
principled outcomes. Smith, 481 Mich at 526.
MCL 700.7401(2)1 provided as follows:
[E]xcept as otherwise provided in the trust instrument, a trustee possesses all of
the following specific powers:
***
(w) To employ an attorney to perform necessary legal services or to advise or
assist the trustee in the performance of the trustee’s administrative duties, even if
the attorney is associated with the trustee, and to act without independent
investigation upon the attorney’s recommendation. An attorney employed under
this subdivision shall receive reasonable compensation for his or her employment.
Here, the trust instrument does not include any explicit statement regarding trustees’ retention of
counsel.
MCL 700.74062 stated in pertinent part:
(1) If there are more trustees and the trust instrument expressly makes
provision for the execution of any of the trustees’ powers by both or all of them or
by any 1 or more of them, the provisions of the trust instrument govern.
***
(3) Subject to subsection (1), if 2 or more trustees own securities, their
acts with respect to voting have 1 of the following effects:
(a) If only 1 trustee votes, in person or by proxy, that trustee’s act binds all
of the trustees.
(b) If more than 1 trustee votes, in person or by proxy, the act of the
majority so voting binds all of the trustees.
1
This statute was amended by 2009 PA 46, effective April 1, 2010.
2
The statute currently reads: “A trust is void to the extent its creation was induced by fraud,
duress, or undue influence.” 2009 PA 46, effective April 1, 2010. The section quoted in the
body of the opinion was valid at the time of the ruling below.
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(c) If more than 1 trustee votes, in person or by proxy, but the vote is
evenly split on a particular matter, each faction is entitled to vote the securities
proportionately.
(4) Subject to subsections (1) to (3), all other acts and duties shall be
performed by both of the trustees if there are 2 or by a majority of the trustees if
there are more than 2. A trustee who has not joined in exercising a power is not
liable to a beneficiary or another person for the consequences of the exercise of
that power. A dissenting trustee is not liable for the consequences of an act in
which the dissenting trustee joins at the direction of the other trustees, if the
dissenting trustee expressed dissent in writing to a cotrustee at or before the time
of joinder.
The trust has an explicit provision regarding the management by co-trustees. Pursuant to MCL
700.7406(1), the section of the trust governs. Section 8.5.3 of the trust states:
Management by Co-Trustees. If there should be appointed by the Grantor
or a court of competent jurisdiction more than one Successor or Substitute Trustee
to serve at the same time as Co-Trustees, then the consent of a majority of such
Trustees, or the agreement of both Co-Trustees if not more than two shall be
serving at the same time, shall be required for administration of this trust. Any
deadlock shall be resolved by the drawing of lots.
Thus, the agreement of the parties was required for the administration of the trust. It is clear
from the record that there were disputes between the parties regarding trust administration.
Appellant construes the law to mean that the parties must agree on every decision, including
retention of an attorney. Logically, though, the statutes recounted above do not impose such a
restriction.
Section 8.5.3 of the trust provided for the drawing of lots to resolve any disputes
regarding trust administration. When disputes arose, appellee retained her own counsel, pursuant
to her powers as trustee under MCL 700.7401(2)(w). “MCL 700.7201(2)(w) specifically
authorizes a trustee to retain counsel and to act on advice so received, provided the trustee does
so in a reasonable and prudent manner.” Temple, 278 Mich App at 134. Appellant did not allege
that appellee failed to act reasonably and prudently in retaining or following the advice of
counsel, only that she failed to receive appellant’s consent. Appellant agrees that trustees are
permitted to hire counsel, but argues that Temple does not apply to co-trustees. Therefore,
appellant contends, the provisions of the trust govern and appellee violated the provision by not
drawing lots. However, there is nothing in Temple or in MCL 700.7401 that exempts a cotrustee from the power to retain counsel. In fact, the statute provides that “a trustee” possesses
the power to do so. MCL 700.7401(2)(w). The statute’s plain meaning and clear language must
be enforced as written. People v Gillis, 474 Mich 105, 115; 712 NW2d 419 (2006).
Because drawing lots would not resolve the issues between the parties, appellee acted
reasonably and prudently in seeking advice of separate counsel to administer the estate and to
resolve problems with appellant.
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Next, appellant argues that she was entitled to fees for her services as fiduciary of the
trust. Appellee does not explain what kinds of fees she is owed, how much, or what duties she
fulfilled, but merely refers to the fact that she provided invoices to appellee. “A party may not
merely announce a position and leave it to this Court to discover and rationalize the basis for the
claim.” Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 265; 739
NW2d 121 (2007).
Next, appellant claims that fees paid to the receiver were not reflected in the final
account. Both appellee’s attorney and the receiver stated that the receiver had been paid in full.
Although there is no explanation on the final account, appellee’s counsel stated that the line item
for the sale of the farm accounts for the receiver’s fees.
Although appellant objected to the line items regarding loan repayments to the trust by
appellee and her brother, it is unclear why. It appears that the amounts were included in the total
sum to be distributed.
The trial court did not err in approving the final account, and did not abuse its discretion
in awarding attorney fees.
Affirmed.
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
/s/ Henry William Saad
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