Civil trust action; The law-of-the-case doctrine; Grievance Adm’r v Lopatin; Due process; Al-Maliki v LaGrant; Attorney fees; MCL 700.7904(2); Reasonableness; MCL 700.7207

The court held that the probate court did not violate the law-of-the-case doctrine, or abuse its discretion by declining to consider the reasonableness of the original trustee’s (Morehouse) proposed attorney fees, and appellant was not denied due process. The probate court entered an order modifying a preliminary injunction that had previously frozen all assets of the trust at issue in this case. It modified the preliminary injunction to allow use of trust assets to pay attorney fees. On appeal, the court rejected appellant’s argument that the trial court’s order violated the law-of-the-case doctrine, based on a previous holding from the court related to this matter. In that decision, the court “merely held that [the grantor-]Ruth had not properly invoked her right under ¶ 3.3(e) of” her husband’s (John) trust. “We did not decide the effect of that failure considering the other provisions of the trust; as we noted, ¶ 3.3(e) simply provided that the failure ‘to file the writing shall constitute an irrevocable disclaimer of any rights under this paragraph.’ We did not decide that the failure to invoke the rights under ¶ 3.3.(e) constituted a disclaimer of all rights under John’s trust.” In addition, it “expressly left open the possibility of litigating defenses to appellant’s claims that included laches and the statute of limitations. We also did not hold that trust assets could not be used to pay attorney fees and administrative costs incurred by the trustee of Ruth’s trust in defending against appellant’s claims.” The court also rejected appellant’s claim that her due-process rights were violated. “[T]he issue of modifying the preliminary injunction to allow Morehouse to pay attorney fees was plainly in her motion, giving appellant notice and the opportunity to address the request in her response in writing and at the hearing on the motion. Therefore, appellant had notice and the probate court did not decide the issue sua sponte.” Finally, the court rejected appellant’s contention that the probate court abused its discretion because it did not consider the reasonableness of the claimed attorney fees. It noted she “did not make a timely request under MCL 700.7207 to review of the reasonableness of the attorney fees incurred by Morehouse as the trustee of Ruth’s trust.” Further, appellant did “not cite any authority for the proposition that the probate court was required to raise this issue sua sponte,” and thus she abandoned the issue. Affirmed.