in Re John D Dospoy Revocable Living Trust ( 2015 )


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  •                          STATE OF MICHIGAN
    COURT OF APPEALS
    In re JOHN D. DOSPOY REVOCABLE LIVING
    TRUST.
    KEVIN DOSPOY,                                                    UNPUBLISHED
    July 14, 2015
    Petitioner/Appellant,
    and
    MARK DOSPOY, DOUGLAS DOSPOY, and
    AARON DOSPOY,
    Petitioner/Appellees,
    v                                                                No. 321304
    Hillsdale Probate Court
    JOHN D. DOSPOY REVOCABLE LIVING                                  LC No. 14-035056-TU
    TRUST, by Successor Trustee JOHN JEFFREY
    DOSPOY,
    Respondent.
    Before: SERVITTO, P.J., and BECKERING and BOONSTRA, JJ.
    PER CURIAM.
    Petitioner Kevin Dospoy (“Kevin”) appeals by right the probate court’s order granting
    petitioners Mark Dospoy (“Mark”), Douglas Dospoy (“Douglas”), and Aaron Dospoy’s
    (“Aaron”) petition for interpretation and enforcement of a trust provision pursuant to
    MCR 5.501(C) and ordering that Successor Trustee John Jeffrey Dospoy (“the trustee”) shall
    prepare a purchase agreement and sell real property owned by the John D. Dospoy Revocable
    Living Trust (“the trust”) to Mark, Douglas, Aaron, and Michael Dospoy. We reverse in part and
    remand in part for further proceedings.
    -1-
    I. PERTINENT FACTS AND PROCEDURAL HISTORY
    The trustee assumed the duty to administer the trust after settlor John Dospoy’s
    (“Dospoy”) death. On March 6, 2013, Kevin, Mark, and Douglas1 met attorney Zachary Rusk at
    the office of the trustee’s attorney, Sara Lisznyai. At that meeting, Rusk read aloud the
    provisions of the trust, including section 3.02, which states:
    3.02 – DISTRIBUTION OF RESIDUE. Upon my death the assets in this Trust
    shall be divided as follows: (1) All horses and horse related equipment I give to
    in equal shares to [sic] my sons Douglas L. Dospoy and Mark Dospoy; (2) All of
    the remaining assets shall be divided equally between my sons, John Jeffrey
    Dospoy, Kevin J. Dospoy, Michael E. Dospoy, Douglas L. Dospoy, Mark Dospoy
    and my grandson, Aaron Dospoy. My sons Douglas L. Dospoy, Mark Dospoy
    and/or my grandson, Aaron Dospoy shall have the option of taking a portion of
    real estate contained in this trust as their share and shall also have the option to
    purchase any additional real estate by doing so within six months from being
    notified of this provision. In the event any of my Children predecease me his
    share shall pass to his issue, per stirpes and in default thereof, to my issue per
    stirpes.
    The record does not reveal that Mark, Douglas, or Aaron exercised his option under
    section 3.02 to purchase trust real estate within six months of the March 6, 2013 meeting; nor
    does the record contain any evidence that any intent to exercise an option was communicated to
    the trustee during that time. On October 8, 2013, petitioners received a letter from Lisznyai,
    informing them that the six-month option had expired and requesting consent for the trustee to
    sell trust real estate to Kevin. Mark, Douglas, and Aaron alleged that they immediately
    contacted the trustee following receipt of the letter, and asked the trustee to sell them the trust
    real estate and to create a purchase agreement so they could obtain financing. The trustee did not
    prepare a purchase agreement. After several months, Mark, Douglas, and Aaron petitioned the
    probate court to interpret section 3.02 of the trust as providing that their six-month option to
    purchase the trust real estate did not begin until they received Liszynai’s letter. They argued
    that, because the trustee did not provide them with written notice pursuant to MCL 700.7814,
    their six-month option did not begin at the March 6, 2013 meeting. The probate court agreed and
    ordered the trustee to sell the trust real estate to Mark, Douglas, and Aaron. They further
    requested that Michael Dospoy also be allowed as a purchaser of the trust real estate, and the
    probate court ordered that he could be added to the purchase agreement. This appeal followed.
    1
    In their petition filed with the probate court, Mark, Douglas, and Aaron initially alleged that
    Aaron had also attended this meeting. However, at oral argument before the probate court,
    Aaron’s counsel indicated that this was a drafting error and that Aaron did not attend the
    meeting. Kevin’s petition indicated that Mark and Douglas attended the meeting, but did not
    state that Aaron had attended. All parties agree on appeal that Aaron did not attend the March 6,
    2013 meeting.
    -2-
    II. STANDARD OF REVIEW
    Where a probate court sits without a jury, this Court reviews its findings of fact for clear
    error. In re Estes Estate, 
    207 Mich App 194
    , 208; 523 NW2d 863 (1994), lv den 
    448 Mich 940
    (1995); MCR 2.613(C) (“Findings of fact by the trial court may not be set aside unless clearly
    erroneous.”). “A finding is clear error when, although there is evidence to support it, the
    reviewing court is left with the definite and firm conviction that a mistake has been committed.”
    
    Id.
     This Court reviews questions of law de novo. In re Estate of Bem, 
    247 Mich App 427
    , 433;
    637 NW2d 506 (2001). “We review de novo a probate court’s construction and interpretation of
    the language used in a . . . trust.” In re Stillwell Trust, 
    299 Mich App 289
    , 294; 829 NW2d 353
    (2012), lv den 
    494 Mich 868
     (2013), recon den 
    495 Mich 868
     (2013). We also review de novo
    questions of statutory interpretation. In re Draves Trust, 
    298 Mich App 745
    , 759; 828 NW2d 83
    (2012).
    III. ANALYSIS
    Kevin argues that the trial court erred in interpreting section 3.02 of the trust as requiring
    that written notice be provided to Mark, Douglas, and Aaron, in order to commence the six-
    month period for the exercise of the option to purchase, and further erred in ordering that the
    trustee prepare a purchase agreement for Mark, Douglas, and Aaron. We agree that neither
    section 3.02 of the trust nor the Michigan trust code requires written notification, and agree that
    the trial court erred in its analysis. However, with respect to Aaron, the record does not reflect
    whether or when he received (or should be deemed to have received) notice of his rights under
    section 3.02 of the trust, and we accordingly remand for further proceedings on that issue.
    “A trust is a right, enforceable solely in equity, to the beneficial enjoyment of property
    the legal title to which is vested in another.” Rossman v Marsh, 
    287 Mich 720
    , 727; 
    286 NW 83
    (1939). The Michigan trust code, MCL 700.7101 et seq., applies to trusts. MCL 700.7102.
    Except in certain circumstances, “the terms of a trust prevail over any provision” of the Michigan
    trust code. MCL 700.7105(2). “In resolving a dispute concerning the meaning of a trust, a
    court’s sole objective is to ascertain and give effect to the intent of the settlor. The intent of the
    settlor is to be carried out as nearly as possible.” In re Kostin, 
    278 Mich App 47
    , 53; 748 NW2d
    583 (2008) (citations omitted).2 This Court applies the general rules used to interpret wills when
    interpreting trusts. See In re Maloney Trust, 
    423 Mich 632
    , 639; 377 NW2d 791 (1985). The
    settlor’s intent must be determined from the trust instrument itself, and “[t]he law is loath to
    supplement the language of [a trust] with extrinsic information.” 
    Id.
     Intent is determined from
    the plain language used, as gathered from the entire trust instrument. See In re Raymond, 
    483 Mich 48
    , 52; 764 NW2d 1 (2009); Union Guardian Trust Co v Nichols, 
    311 Mich 107
    , 114; 18
    2
    Kevin argues on appeal that the probate court erred by considering extrinsic evidence when it
    considered Dospoy’s intent in construing the trust. However, the record reflects that the probate
    court gleaned the settlor’s intent from the language of the trust itself, which is proper. See In re
    Maloney Trust, 
    423 Mich 632
    , 639; 377 NW2d 791 (1985), In re Kremlick Estate, 
    417 Mich 237
    , 240; 331 NW2d 228 (1983). Although we find that the probate court erred in its
    interpretation of the trust, we do not find that it improperly considered extrinsic evidence.
    -3-
    NW2d 383 (1945). “This Court must attempt to construe the instrument so that each word has
    meaning.” In re Kostin, 278 Mich App at 53. To determine the meaning of a word in a trust
    provision, this Court may refer to a dictionary. In re Gerald L Pollack Trust, ___ Mich App ___,
    ___; ___ NW2d ___ (2015), slip op at 10. If no ambiguity exists in the trust language, the trust
    must be enforced as written. See Mich Trust Co v Grand Rapids Hotel Co., 
    265 Mich 328
    , 338;
    
    251 NW 414
     (1933).
    In this case, the parties do not dispute that Dospoy’s trust was a valid trust. Rossman,
    
    287 Mich at 727
    . The relevant provision of section 3.02 of the trust states as follows:
    My sons Douglas L. Dospoy, Mark Dospoy, and/or my grandson, Aaron Dospoy
    shall have the option of taking a portion of real estate contained in this trust as
    their share and shall also have the option to purchase any additional real estate by
    doing so within six months from being notified of this provision.
    Furthermore, section 5.02(1) of the trust gave the trustee the power to convey trust real estate
    “for any period and upon any terms and conditions whatsoever to any person . . . .”
    According to Black’s Law Dictionary (9th ed), p 1167, “to notify” means “[t]o inform (a
    person or group) in writing or by any method that is understood.” Therefore, the plain meaning
    of section 3.02 does not require written notice; rather, it merely requires notice “by any method
    that is understood.” 
    Id.
     Because there is no ambiguity, the plain language used must be given
    effect. Mich Trust Co, 
    265 Mich at 338
    . Furthermore, it was clear from the plain language of
    the trust that Dospoy’s intent was that if Mark, Douglas, or Aaron did not purchase trust real
    estate within those six months, the trustee had the power to sell the trust real estate pursuant to
    section 5.02(1). Mich Trust Co, 
    265 Mich at 338
    .
    The parties agree that Mark and Douglas were notified of their rights under section 3.02
    of the trust at the March 6, 2013 meeting. Mark and Douglas do not dispute that, at this meeting,
    the trust was read to them and they were informed of their six-month option to purchase the trust
    real estate. Although it is not clear whether they were provided with written notification, the
    trust does not require such notification; rather, they only needed to be informed “by any method
    that is understood.” Six months from March 6, 2013 was September 6, 2013. Therefore,
    according to section 3.02 of the trust, their option to purchase the trust real estate expired on
    September 6, 2013. Mich Trust Co, 
    265 Mich at 338
    . The record is devoid of evidence that
    Mark or Douglas purchased, attempted to purchase, or indicated a desire to purchase the trust
    real estate before September 6, 2013. Rather, the record indicates that they did not take steps to
    exercise their option until after they received Lisznyai’s October letter.
    The probate court appeared to rely on MCL 700.7814(2)(b) or (c) in holding that because
    Mark, Douglas, and Aaron were not provided with written notice of section 3.02 of the trust until
    they received Lisznyai’s letter, the six-month time period for purchasing the trust real estate did
    not begin to run until October 2013. This was clear error. MCL 700.7814(2)(b) states that “[a]
    trustee shall[,] . . . within 63 days after accepting a trusteeship, notify the qualified trust
    beneficiaries of the acceptance, of the court in which the trust is registered, if it is registered, and
    of the trustee’s name, address, and telephone number.”                         MCL 700.7814(2)(b).
    MCL 700.7814(2)(c) states that
    -4-
    [a] trustee shall[,] . . . within 63 days after the date the trustee acquires knowledge
    of the creation of an irrevocable trust, or the date the trustee acquires knowledge
    that a formerly revocable trust has become irrevocable, whether by the death of
    the settlor or otherwise, notify the qualified trust beneficiaries of the trust’s
    existence, of the identity of the settlor or settlors, of the court in which the trust is
    registered, if it is registered, and of the right to request a copy of the terms of the
    trust that describe or affect the trust beneficiary’s interests.
    [MCL 700.7814(2)(c).]
    We interpret statutes according to their plain meaning. Joseph v Auto Club Ins Ass’n,
    
    491 Mich 200
    , 206; 815 NW2d 412 (2012). The plain meaning of MCL 700.7814(2)(b) is that
    the trustee must, within 63 days of accepting the trusteeship, notify beneficiaries of that
    acceptance and of various details regarding registration of the trust. 
    Id.
     The plain meaning of
    MCL 700.7814(2)(c) is that the trustee must, within 63 days of a revocable trust becoming
    irrevocable, notify the beneficiaries of the existence of the trust, of the identity of the settlor or
    settlers, and of various details regarding registration of the trust.                 
    Id.
         Neither
    MCL 700.7814(2)(b) nor (c) applies to the issue of whether any petitioner was notified of his
    rights under section 3.02 of the trust such that the six-month option to purchase trust real estate
    began to run. Rather, MCL 700.7814 establishes certain duties of a trustee, a breach of which
    may provide a trust beneficiary with a cause of action against the trustee. Although, pursuant to
    MCL 700.7105(2)(i), a trust provision cannot override the requirements of MCL 700.7814(2)(b)
    and (c), section 3.02 of the trust does not attempt to or actually override MCL 700.7814(2)(b) or
    (c). Rather, section 3.02 merely establishes, among other things, when Mark, Douglas, and
    Aaron’s right to purchase the trust real estate begins and ends. Neither the probate court nor any
    party provided an explanation regarding why the application of MCL 700.7814 would compel
    the conclusion that notification of this right did not occur at the March 6, 2013 meeting.3
    In sum, section 3.02 affords Mark, Douglas, and Aaron the option to purchase trust real
    estate within six months of being notified of their option to do so. The probate court erred in
    applying MCL 700.7814, instead of section 3.02, to the question of when their option to
    purchase the trust real estate began. MCL 700.7105(2). Mark and Douglas were notified of their
    option on March 6, 2013, and failed to exercise it within six months of that date; therefore,
    subject to the caveat described below, the trustee could sell the property to anyone pursuant to
    section 5.02(1). Mich Trust Co, 
    265 Mich at 338
    .
    3
    Further, even if MCL 700.7814 applied to section 3.02, the statutory provisions cited, unlike
    other sections of the Michigan trust code, do not explicitly provide for notice in writing. See,
    e.g., MCL 700.7108(4). Such exclusion of an explicit writing requirement, when that
    requirement is present in other statutory sections, should be construed as intentional, and this
    Court should not read provisions into a statute not intended by the Legislature. See Farrington v
    Total Petroleum, Inc, 
    442 Mich 201
    , 210; 501 NW2d 76 (1993) (“Courts cannot assume that the
    Legislature inadvertently omitted from one statute the language that it placed in another statute,
    and then, on the basis of that assumption, apply what is not there.”); see also Polkton Charter
    Twp, 
    265 Mich at 103
    .
    -5-
    However, with regard to Aaron, all parties agree that Aaron was not present at the March
    meeting. The record is devoid of evidence regarding whether or when Aaron was notified (or
    should be deemed to have been notified) of his rights under section 3.02 of the trust. Although
    Kevin provides an affidavit (from himself) stating that all petitioners were provided with a copy
    of the trust at least one year prior to Dospoy’s death, section 3.02 is found in Article III of the
    trust, entitled “Duties Upon My Death.” Thus, reading section 3.02 in light of the entire trust
    instrument, Union Guardian Trust Co v Nichols, 
    311 Mich at 114
    , section 3.02 imposes a duty
    upon the trustee to provide notification of rights arising under section 3.02 upon the death of the
    settlor, which duty the trustee attempted to fulfill at the March meeting.4 However, Aaron’s
    absence from that meeting requires consideration of whether or when the trustee carried out that
    duty with respect to Aaron. The record reflects that the trial court took no evidence, and made
    no findings, in that regard, including, for example, regarding whether the trustee provided
    notification to Aaron in another communication, and regarding whether the circumstances of
    Aaron’s age, family or living relationships with Mark or Douglas, communications between
    Aaron and Mark or Douglas, or other appropriate considerations, were such that the trustee’s
    duty should be deemed to have been fulfilled with respect to Aaron as of the March meeting,
    notwithstanding that Aaron was not personally present at that meeting. On remand, the trial
    court should consider those and any other appropriate issues and issue further findings with
    respect to Aaron.
    Reversed with respect to Mark and Douglas. Remanded for further proceedings with
    respect to Aaron. We do not retain jurisdiction.
    /s/ Deborah A. Servitto
    /s/ Jane M. Beckering
    /s/ Mark T. Boonstra
    4
    Indeed, to hold otherwise would require us to find that the option to purchase had expired prior
    to the settlor’s death, as the parties would have been “notified” upon their receipt of the trust
    amendment over one year before John’s death. Such a result is clearly contrary to the intent of
    the settlor, and we decline to adopt a construction that leads to such a result. Kostin, 278 Mich
    App at 53.
    -6-