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Appeals court judges: We are not ‘research assistants’

Brief writing is an art form. For those attorneys are still elevating their craft, there are some non-negotiable rules: Do your research, fully flesh out your arguments and make sure the appellate court doesn’t have to pull out a crystal ball to divine your intentions.

Such was the case in a recent family feud over the administration of a woman’s trust that worked its way up to the Michigan Court of Appeals.

In Tylo v. Tylo, Margaret Tylo had transferred all of her personal property — and her house — to the trust. The trust’s assets were to be divided into six “substantially equal shares” to her surviving children: Samuel, Mark, Theresa, Sara, Douglas and Michael.

Samuel was appointed as successor trustee and Theresa was the alternate successor trustee.

After Margaret died in 2015, Samuel promised to sell the house to Sara, Mark and Theresa. But he didn’t.

The siblings’ relationship deteriorated from there. Litigation ensued regarding how to distribute the trust’s assets, and what to do with Margaret’s house in particular.

In an April 2016 hearing, the Wayne County (Michigan) Probate Court ordered Samuel to sell the house to Sara, Mark and Theresa. Due to the hostility between the Tylo siblings, a special fiduciary was appointed to oversee the process.

It took more than a year, but eventually the trio bought the house from Samuel.

That wasn’t the end of the family feud.

Theresa filed an affidavit with the trial court saying Samuel paid his attorney $13,033 in needless attorneys’ fees out of the trust’s assets.

The lower court frowned on this development.

It ordered Samuel’s attorney to repay the trust because he wasn’t entitled to attorneys’ fees related to the sale of Margaret’s house after the April hearing, adding that he didn’t provide sufficient documentation to support his fee request.

Samuel didn’t fare any better on appeal. The appellate judges rejected all of his arguments in short order.

Because his brief raised multiple issues not included in his statement of questions involved — like the value of the personal property he claims should have been included in the trust’s assets and whether the lower court should have named a special fiduciary in the feud — those issues were waived.

And even if they hadn’t been waived, they were abandoned; absent in Samuel’s brief was any legal argument about them.

Also abandoned was his claim that the lower court made a mistake by not enforcing a “settlement” the parties reached at a February 2016 hearing. Again, Samuel failed to offer argument or authority.

“Indeed, we ‘are not the research assistants of the litigants; the parties have a duty to fully present their legal arguments to the court for its resolution of their dispute,’” the panel pointedly noted, citing Walters v. Nadell.

In fact, Samuel merely offered a citation to three sections of Michigan’s trust code, nothing more.

Unusual situation

His claim for attorneys’ fees was abandoned because, once again, he failed to cite any specific statute or case regarding the issue.

Instead, he cited “the entirety of the Michigan trust code for the proposition that a trustee is authorized to pay an attorney with trust assets.”

The material he quoted in his brief was from the repealed version of MCL 700.7401, which has since been revised and moved to MCL 700.7817(w).

“Samuel is correct that a trustee may retain legal counsel to fulfill his or her duties as a trustee,” the panel said. “But Samuel completely fails to address the requirements for a trial court to award attorney fees.”

Samuel made the same mistake as before — simply stating a claim with virtually no support, and leaving it to the appeals court to pinpoint and justify a basis for his claim.

“We note that it is unusual for us to decide a case without addressing any of the issues on the merits,” the appellate judges said. “But Samuel presented us with an unusual situation because he wholly failed to present any substantive legal argument in this case, and we decline to treat this case any differently in that regard from this Court’s typical practice.”

The trial court’s orders were affirmed, and Samuel’s attorney has to repay attorneys’ fees to the trust.