Elena N Betts-Watkins v. Arlyn J Bossenbrook ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ELENA N. BETTS-WATKINS, UNPUBLISHED
October 20, 2022
Plaintiff-Appellant,
v No. 358730
Ingham Circuit Court
ARLYN J. BOSSENBROOK and LAW OFFICES LC No. 20-000699-NM
OF ARLYN J. BOSSENBROOK, PC,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and BORRELLO and CAMERON, JJ.
PER CURIAM.
In this action alleging legal malpractice and breach of fiduciary duty against defendant
Arlyn J. Bossenbrook and his law firm, plaintiff appeals by right the trial court’s order granting
defendants’ motion for summary disposition under MCR 2.116(C)(7) (prior release). For the
reasons set forth in this opinion, we affirm.
I. BACKGROUND
In 2003, plaintiff and DuWayne Watkins executed a prenuptial agreement (the 2003
Agreement)1 and were married. The 2003 Agreement provided in relevant part that the marital
home would pass to the surviving spouse and that plaintiff would additionally receive assets equal
to 20 percent of the gross estate upon DuWayne’s death. These assets would be transferred to
plaintiff from DuWayne’s trust.
Plaintiff alleged that, beginning in December 2010, Bossenbrook facilitated DuWayne’s
efforts to “dissolve the contractual terms” of the 2003 Agreement and to modify the terms of that
1
When reviewing a motion for summary disposition under MCR 2.116(C)(7), the “contents of the
complaint are accepted as true unless contradicted by documentation submitted by the movant.”
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). Thus, for purposes of this appeal,
we accept as true the allegations in plaintiff’s first amended complaint unless stated otherwise.
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agreement through execution of a new agreement (the 2010 Agreement) to plaintiff’s detriment.
Bossenbrook and DuWayne also created a “new Trust” (the Trust), and plaintiff claimed that
Bossenbrook failed to inform her about the contents of the Trust or the 2010 Agreement’s changes
to the 2003 Agreement. Plaintiff alleged that she was told to sign the 2010 Agreement without
any explanation from Bossenbrook as to what the agreement contained and without being given
an opportunity to seek the advice of independent counsel. According to plaintiff’s complaint, she
is not a native speaker of the English language. The 2010 Agreement allegedly had a negative
effect on plaintiff’s interests in both the marital home and DuWayne’s assets.
DuWayne died in 2015, and Bossenbrook nominated himself to serve as both the Trust’s
trustee and the trustee’s attorney. Plaintiff was still married to DeWayne at the time of his
death. Plaintiff claimed that Bossenbrook created conflicts of interest, and violated the terms of
the Trust, by naming plaintiff to be “Trust Protector” and advising her in this role. According to
plaintiff, Bossenbrook did this to obtain her “unwitting participation in his mismanagement of the
Trust.”
Further, Bossenbrook also established an attorney-client relationship with plaintiff in her
personal capacity in 2016, and Bossenbrook created an estate plan for plaintiff. According to
plaintiff, this raised numerous conflicts of interest arising from Bossenbrook’s role in the 2010
Agreement and in the creation of the Trust, as well as his multiple roles in relation to the
administration of the Trust. Plaintiff complained that Bossenbrook’s failure to disclose his
conflicts of interests impaired her rights over the marital home and Trust assets. In 2017,
Bossenbrook transferred the marital home to the trust. He also allegedly advised plaintiff at some
point that she only held a life estate in the marital home. In 2019, Bossenbrook completed
additional modifications to plaintiff’s estate plan.
Litigation ensued in the Ingham County Probate Court generally involving Bossenbrook’s
alleged mismanagement of the Trust, Bossenbrook’s various alleged conflicts of interest, a legal
malpractice claim alleged against Bossenbrook by alleged trust beneficiary Elizabeth Watkins, a
claim that Bossenbrook breached his fiduciary duty to Elizabeth, and a petition to remove
Bossenbrook as trustee. Bossenbrook, plaintiff, and other purported beneficiaries of the Trust were
involved in the probate court litigation.
The probate court litigation was resolved by a settlement agreement and release dated
October 2, 2020 and approved by the probate court on November 13, 2020 (the Settlement).
Plaintiff, Bossenbrook, the Trust, and Elizabeth were all parties to the Settlement. Under the
Settlement, plaintiff would receive title to the marital home and the Trust would pay $45,000 to
plaintiff’s attorney, Nancy Little, for attorney fees and costs incurred by plaintiff.
Paragraphs 5-7 of the Settlement provided:
Full and Final Settlement. This agreement is made and performed in full and final
settlement and compromise of all disputes and controversies between and among
the Parties, including all claims, counterclaims, cross-claims and Issues, known and
unknown, both legal and factual relating to the Proceeding and Issues and the
events, transactions and occurrences involved in the Proceeding and Issues. There
are no other agreements between the Parties with respect to the settlement of these
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Issues, disputes, controversies and claims. This Agreement shall serve as a bar in
the nature of both res judicata and collateral estoppel to the raising of any claim or
Issue actually raised in the Proceeding and any claim or Issue that could have been
raised in the Proceeding, including any claims for costs or attorney fees or sanctions
by any Party against any other Party relating in any way to the Issues, events,
transactions and occurrences involved in the Proceeding.
Mutual Release. The Parties have released and discharged each other, and by these
presents do for themselves and their respective successors, heirs, assigns, executors,
administrators, directors, officers, employees, agents, attorneys and all those
claiming through or under them, release, acquit and forever discharge each other
and all their respective heirs, successors, assigns, executors, administrators,
directors, officers, employees; agents, attorneys and all those claiming under or
through them from any and all actions, causes of action, claims, liabilities, debts,
contracts, sums arising, damages, administrative claims and complaints,
grievances, sanctions and any other thing whatsoever on account of or in any way
arising from the Issues or the Proceeding, including, but not limited to, the subject
matter of this Agreement, the Issues, events, transactions and occurrences involved
in the Proceeding, the Issues and matters related thereto, all matters asserted in the
Proceeding, and all matters that could have been asserted in the Proceeding. The
consideration recited is accepted by each Party in full compromise, settlement,
satisfaction, release and discharge of any liability of any of the above-named
persons to each other arising as stated above. Each of the parties to this agreement
understands that this Agreement is the compromise of doubtful and disputed claims
between them, and that the payment under this agreement is not to be construed as
an admission of liability, which is expressly denied by each. This Agreement is
being entered into solely to avoid the financial and emotional burden of continued
litigation.
Lawsuits and Proceedings Forever Barred. It is the intention of the Parties and it is
understood by each of the Parties hereto that this Agreement will and does hereby
forever and for all time bar any action, claim, proceeding or administrative
proceeding whatsoever by the Parties which arose, in whole or in part or which
might arise in the future with respect to the Proceeding and/or the Issues, events,
transactions and occurrences involved in the Proceeding.
Additionally, the Settlement defined the term “Proceeding” to mean the probate court
action involving the Trust. The Settlement further stated, “As used herein the term ‘Issues’ means
all issues and controversies regarding the Trust, the Trust’s assets; the receipts, disbursement, gains
and losses of the Trust; and all other issues surrounding the administration of the Trust for all time,
from time immemorial.” Plaintiff was not represented by defendants at this point but instead had
her own independent counsel.
Plaintiff subsequently initiated the instant action in the Ingham Circuit Court on December
10, 2020. A first amended complaint was filed on January 25, 2021. Plaintiff asserted claims
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against defendants for legal malpractice and breach of fiduciary duty.2 In Count I, plaintiff alleged
that defendants committed malpractice by (1) failing to inform her of Bossenbrook’s conflicts of
interest (stemming from Bossenbrook’s 2010 actions and representation on behalf of DuWayne)
when Bossenbrook established an attorney-client relationship with plaintiff in 2016, (2) failing to
advise plaintiff in 2016 of the deficiencies and invalidity of the 2010 documents drafted by
Bossenbrook, (3) failing to advise plaintiff to secure independent counsel at the beginning of the
Trust litigation in the probate court, (4) forcing plaintiff to incur attorney expenses to defend
herself in the probate court litigation, (5) drafting “deficiencies” in the 2016 estate planning
documents drafted for plaintiff that failed to account for plaintiff’s specific circumstances that
included her rights under the Trust, and (6) drafting “deficiencies” in the 2019 estate planning
documents drafted for plaintiff that seemingly involve alleged instances of “poor” and confusing
draftsmanship regarding the operation of plaintiff’s separate trust.
Plaintiff claimed that Bossenbrook’s negligence caused her to incur damages, specifically
the loss of fee simple ownership interests in the marital home for a period of years, the loss of her
right to 20 percent of DuWayne’s remaining assets, fees and costs incurred in the probate court
litigation, being forced to compromise with other Trust claimants in order to recover fee ownership
of the marital home, fees paid to Bossenbrook as trustee of the Trust and attorney for the trustee,
estate planning fees, and various forms of mental pain and suffering.
In Count II, plaintiff alleged that Bossenbrook breached the fiduciary duty owed to
plaintiff, specifically through his failure to disclose to her his various conflicts of interest, failing
to disclose how the 2010 Agreement modified the 2003 Agreement to plaintiff’s detriment and
that plaintiff could challenge the validity of the 2010 Agreement, his serving both as trustee of the
Trust and attorney for the trustee, his improper appointment of her as Trust Protector, and his
failure to address plaintiff’s language issues by securing an interpreter. Plaintiff alleged that she
had suffered mental anguish and emotional distress as well as financial loss and difficulties through
Bossenbrook’s administration of the Trust.
Rather than file an answer, defendants filed their motion for summary disposition under
MCR 2.116(C)(7), arguing that the Settlement was comprehensive and clearly barred plaintiff’s
claims. Plaintiff countered that her claims against Bossenbrook were based on Bossenbrook’s
handling of plaintiff’s own estate plan, which was independent from matters involving the Trust
and its administration, and that the probate court could not have heard the claims now raised by
plaintiff because they were outside the limited subject-matter jurisdiction of the probate court.
Plaintiff asserted that the Settlement was limited in scope to matters that were raised or could have
been raised in the probate court as part of the Trust litigation.
The trial court granted defendants’ motion. The court reasoned that plaintiff’s claims arose
from the administration of the trust, and therefore could have been raised in the probate litigation
and were now barred by the Settlement, because plaintiff’s claimed damages pertained to the
2
Plaintiff’s theory of liability against defendant Law Offices of Arlyn J. Bossenbrook was solely
based on respondeat superior.
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marital home and other assets of the Trust. The trial court denied plaintiff’s motion for
reconsideration. Plaintiff now appeals.
II. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s decision on a motion for summary disposition,
as well as questions of statutory interpretation and the construction and application of court rules.”
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010) (citations omitted).
Relevant to this appeal, summary disposition is properly granted pursuant to MCR 2.116(C)(7)
when there has been a prior release or judgment warranting dismissal of the action. MCR
2.116(C)(7). When a motion is based on Subrule (C)(7), a court must consider the “affidavits,
together with the pleadings, depositions, admissions, and documentary evidence then filed in the
action or submitted by the parties.” MCR 2.116(G)(5). The pleadings and evidence are construed
in favor of the nonmoving party. Anzaldua v Neogen Corp, 292 Mich App 626, 629; 808 NW2d
804 (2011). “The interpretation of the release [is] a question of law for the court to decide.” Cole
v Ladbroke Racing Mich, Inc, 241 Mich App 1, 13; 614 NW2d 169 (2000).
III. ANALYSIS
Plaintiff first argues that the trial court’s summary disposition ruling was erroneous
because plaintiff’s claims are outside the scope of the Settlement. Plaintiff maintains that the
Settlement only pertains to matters directly involving the Trust and her claims are based on
Bossenbrook’s involvement with plaintiff’s separate, personal estate planning.
As this Court has explained:
The scope of a release is governed by the intent of the parties as it is
expressed in the release. If the text in the release is unambiguous, the parties’
intentions must be ascertained from the plain, ordinary meaning of the language of
the release. A contract is ambiguous only if its language is reasonably susceptible
to more than one interpretation. The fact that the parties dispute the meaning of a
release does not, in itself, establish an ambiguity. [Id. at 13-14 (citation omitted).]
Here, plaintiff and Bossenbrook were parties to the Settlement, which specifically stated
that “[t]his agreement is made and performed in full and final settlement and compromise of all
disputes and controversies between and among the Parties, including all claims, counterclaims,
cross-claims and Issues, known and unknown, both legal and factual relating to the Proceeding and
Issues and the events, transactions and occurrences involved in the Proceeding and Issues.”
(Emphasis added.) “[T]here is no broader classification than the word ‘all.’ ” Cole, 241 Mich
App at 14 (citation and some quotation marks omitted).
Additionally, the mutual release language within the Settlement provided:
The Parties have released and discharged each other, and by these presents do for
themselves and their respective successors, heirs, assigns, executors,
administrators, directors, officers, employees, agents, attorneys and all those
claiming through or under them, release, acquit and forever discharge each other
and all their respective heirs, successors, assigns, executors, administrators,
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directors, officers, employees; agents, attorneys and all those claiming under or
through them from any and all actions, causes of action, claims, liabilities, debts,
contracts, sums arising, damages, administrative claims and complaints,
grievances, sanctions and any other thing whatsoever on account of or in any way
arising from the Issues or the Proceeding, including, but not limited to, the subject
matter of this Agreement, the Issues, events, transactions and occurrences involved
in the Proceeding, the Issues and matters related thereto, all matters asserted in the
Proceeding, and all matters that could have been asserted in the Proceeding. The
consideration recited is accepted by each Party in full compromise, settlement,
satisfaction, release and discharge of any liability of any of the above-named
persons to each other arising as stated above. Each of the parties to this agreement
understands that this Agreement is the compromise of doubtful and disputed claims
between them, and that the payment under this agreement is not to be construed as
an admission of liability, which is expressly denied by each. This Agreement is
being entered into solely to avoid the financial and emotional burden of continued
litigation. [Emphasis added.]
Furthermore, the Settlement provided:
It is the intention of the Parties and it is understood by each of the Parties hereto
that this Agreement will and does hereby forever and for all time bar any action,
claim, proceeding or administrative proceeding whatsoever by the Parties which
arose, in whole or in part or which might arise in the future with respect to the
Proceeding and/or the Issues, events, transactions and occurrences involved in the
Proceeding. [Emphasis added.]
This language unambiguously provides for a broad settlement of potential claims between
the parties, both “known and unknown.” Moreover, although plaintiff contends that her estate
planning was distinct from her deceased husband’s trust, it is evident from the degree of
entanglement between Bossenbrook’s conduct and matters pertaining to plaintiff as both a
beneficiary of DuWayne’s estate and client with respect to her own estate planning, all of which
relate to the conflicts of interest plaintiff alleged were created by Bossenbrook, that plaintiff’s
estate planning matters were at least “relat[ed]” to the matters involved in the probate court
litigation involving the Trust.
Contrary to plaintiff’s argument, the scope of this settlement language is not limited only
to matters actually involved in the probate court proceedings or that could have been brought in
the probate court as part of those trust proceedings. Such matters are expressly included within
the scope of the settlement and release language, but there is no language limiting the scope of the
release in the manner proposed by plaintiff. Instead, it is evident from the broad language of the
settlement and release that the parties intended there to be a release of all potential claims between
the parties, known and unknown, wherever those claims could be asserted. Cole, 241 Mich App
at 13-14.
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Affirmed.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Thomas C. Cameron
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