Claims for breach of fiduciary duty & misappropriation related to a trust; Whether the interested party’s summary disposition motion was properly before the trial court; Claims for breach of trust & for the levying of a surcharge; The Michigan Trust Code (MCL 700.7101 et seq.); MCL 700.7814(2) & (3); A trustee’s violation of a duty owed to a trust beneficiary; MCL 700.7901(1); Remedy options; MCL 700.7901(2)(c); MCL 700.7902; In re Baldwin Trust; Interpreting the meaning of a trust; In re Miller Osborne Perry Trust; Claims as to the appointment of a successor trustee; Whether the trust language provided that the children beneficiaries were not entitled to participate in the selection of a successor trustee at the time; Claims as to the failure to create sub-trusts; Claim for improper invasion of the trust principal; MCL 700.7801; MCL 700.7815(1)

The court held that interested party-Gail Veilleux was properly granted summary disposition of respondent-James Veilleux’s claims for breach of fiduciary duty and misappropriation. The trial court also did not err in dismissing his claims against Gail and petitioner-Polk (the successor trustee) for breach of trust and in not levying a surcharge against Polk. Further, based on the Trust’s plain language, “the children beneficiaries were not entitled to participate in the selection of a successor trustee after” a bank declined to serve. Finally, the trial court did not err in determining that “Polk’s failure to allocate the assets into sub-trusts did not cause a loss to the Trust or the children beneficiaries,” and there was no material question of fact as to whether he abused his discretion in distributing Trust principal to Gail. The court first found that Gail was entitled to summary disposition because there was no genuine issue of material fact as to whether she “misappropriated Trust assets, and because no damages arose from any failure by her as a trustee to provide annual accountings to” the children beneficiaries. As to James’ claims for breach of trust and seeking the levying of a surcharge, “Polk conceded that after his appointment as trustee in 1999 he did not send any communications or annual accountings to the beneficiaries who were not then eligible to receive income or distributions, other than to respond to” one request for information. Also, for “the six years preceding his filing the petition, there had been ‘no receipts, so there have been no accountings.’” James argued that due to the “trustees’ failure to provide an annual accounting and other Trust administration information to the children beneficiaries” in breach of their duties under MCL 700.7814(2) and (3), the trial court “erred in declining to surcharge them for their breaches. However,” the court noted that ordering “remedial action, including a surcharge, was permissive, not mandatory. Because Polk has since provided the information to James, and because there is no evidence to support a finding that an earlier failure to keep the children beneficiaries informed caused any harm to either the Trust or the children beneficiaries’ interests,” the trial court did not abuse its discretion. Affirmed.