IN RE PINE HILL TRUST
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STATE OF MICHIGAN
COURT OF APPEALS
___________________________________________
In Re PINE HILL TRUST.
DARRIN THIBERT,
UNPUBLISHED
December 10, 2002
Petitioner-Appellee,
v
No. 232381
Livingston Probate Court
LC No. 98-003187
BRADFORD METCALF,
Respondent-Appellant.
Before: Neff, P.J., and Hoekstra and O’Connell, JJ.
PER CURIAM.
Respondent appeals as of right in this action involving court supervision of a trust and
disposition of the trust property by order of the Livingston Probate Court. We affirm.
This action involves a so-called common-law “contract trust,”1 established by respondent
and his allegedly common-law wife, petitioner’s mother, now deceased. The trust property
consisted solely of a parcel of real property in Calhoun County. Following the death of his
mother and the incarceration of respondent, petitioner sought court supervision of the trust,
which the Livingston Probate Court granted. The court denied respondent’s motion to dismiss
the proceedings.
1
According to respondent, in establishing the trust, he and petitioner’s mother believed “that a
common law trust had no business in a statute law court.” This belief was apparently premised
on a view that, as a trust under “the common-law right of contract,” the Contract Clause of the
United States Constitution, Art I, § 10 (“No State shall … pass any … Law impairing the
Obligation of Contracts ….”) would protect their property from “vexatious litigators” by
prohibiting interference with their trust through a court of law.
-1-
Respondent challenges the actions of the Livingston Probate Court, arguing that the
dismissal of a prior proceeding in the Calhoun Probate Court is dispositive with regard to the
courts’ lack of “power” to oversee the trust. Respondent argues that the Livingston Probate
Court proceedings should have been dismissed on the basis of a lack of jurisdiction and res
judicata because an earlier petition for supervision filed in the Calhoun Probate Court was
dismissed. Further, respondent contends that the Livingston Probate Court proceedings denied
him due process of law, that the court was biased against him, and that the court ignored
“intentional fraud and deceit upon the court.” We disagree.
We find respondent’s claims without merit. With regard to respondent’s claims of lack
of jurisdiction and res judicata, respondent has failed to show that the Livingston Probate Court
lacked jurisdiction and that the prior action was decided on the merits, thus barring the
subsequent action on the basis of res judicata. Dart v Dart, 460 Mich 573, 586; 597 NW2d 82
(1999). Although petitioner filed an earlier action in the Calhoun Probate Court, seeking a copy
of the trust and court supervision, the trust document produced in the Calhoun action showed the
trust situs to be Livingston County. The Livingston Probate Court found that Calhoun Probate
Court did not take jurisdiction and dismissed the petition because the situs for the trust, as stated
on the face sheet of the trust document, is Livingston County, and jurisdiction is properly with
Livingston Probate Court. This finding is not clearly erroneous. MCL 700.1302(b), 700.7101,
700.7201, 700.7202;2 In re Americana Foundation, 145 Mich App 735, 736-737, 741; 378
NW2d 586 (1985).
Respondent’s claims of a denial of due process, judicial bias, and fraud upon the court
similarly fail. In keeping with due process requirements, respondent participated in the hearing
on his motion to dismiss the Livingston County action and had the opportunity to be heard with
regard to his claims. Traxler v Ford Motor Co, 227 Mich App 276, 288; 576 NW2d 398 (1998).
Contrary to respondent’s assertion, there is no indication that the court ignored the affidavits of
trustee Fred Hamm and respondent, and moreover, we do not conclude that the facts averred
were dispositive of the issues presented. The record does not support respondent’s contention
that the court’s decision was the result of personal bias against him. Likewise, we find no record
support for respondent’s claims that the court ignored intentional fraud and deceit committed by
petitioner in referring to respondent’s “common law” marriage or in allegedly downplaying “the
role and involvement of [respondent] in the development of this trust.”
Affirmed.
/s/ Janet T. Neff
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
2
At the time this action was filed, the venue was governed by the Revised Probate Code, MCL
700.805(1) and 700.806. The Revised Probate Code has since been replaced by the Estates and
Protected Individuals Code, MCL 700.1101 et seq. 1998 PA 386.
-2-
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