                          STATE OF MICHIGAN

                             COURT OF APPEALS



PATRICIA SUTTER,                                                   UNPUBLISHED
                                                                   December 16, 2014
               Plaintiff-Appellant,

v                                                                  No. 316915
                                                                   Oakland Circuit Court
THOMAS BRENNAN FRASER and THOMAS                                   LC No. 12-130669-CZ
BRENNAN FRASER, PLLC,

               Defendants-Appellees,

CHARLES SUTTER, MICHELLE BERTUCCI,
and SELECT SPECIALTY HOSPITAL,

               Defendants.


Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ.

PER CURIAM.

       Plaintiff appeals as of right an opinion and order granting defendants, Thomas Brennan
Fraser’s and Thomas Brennan Fraser, PLLC’s, motion for summary disposition in this action for
breach of fiduciary duty and negligence. On appeal, plaintiff argues that the trial court erred in
granting defendants’ motion for summary disposition. We affirm.

        This case arises from a guardianship matter in the Oakland Probate Court where Fraser,
acting through Thomas Brennan Fraser PLLC, was appointed guardian over plaintiff’s husband,
Joseph Sutter. Plaintiff and Joseph were married for over 20 years and in February 2010, Joseph
suffered a heart attack and was subsequently diagnosed with severe multi-vessel coronary
disease. On February 26, 2010, Joseph underwent a five-vessel coronary bypass, and later
contracted a severe infection. After the surgery, Joseph required life support. On July 28, 2010,
Fraser was appointed as Joseph’s temporary legal guardian, and his appointment as guardian was
made permanent on August 25, 2010. Fraser was also appointed Joseph’s conservator. After
several months, Joseph died on February 1, 2011.




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        On November 21, 2012, plaintiff filed a complaint against defendants for breach of
fiduciary duty and gross negligence.1 Plaintiff alleged that Fraser, in his capacity as Joseph’s
guardian and conservator, owed her a fiduciary duty and had breached that duty. Plaintiff
claimed that Fraser declined to take advantage of Veteran Affairs (VA) benefits for Joseph,
incurring costs of approximately $600,000 against Joseph and plaintiff; removed Joseph’s life
support without a court order; terminated life support without consulting plaintiff; refused to
allow plaintiff to visit Joseph; and obstructed and interfered with plaintiff’s visits when plaintiff
was permitted to visit Joseph. On December 14, 2012, defendants filed a motion for summary
disposition and argued that plaintiff lacked standing. On February 27, 2013, the trial court
granted defendants’ motion, finding that plaintiff lacked standing to proceed in her claims
against defendants.
        Plaintiff argues that the trial court erred in granting defendants’ motion for summary
disposition pursuant to MCR 2.116(C)(5) because Fraser, as guardian and conservator for
Joseph, owed a fiduciary duty to plaintiff as Joseph’s spouse and heir. We disagree.
        We review de novo the legal question of whether a party has standing and the trial court’s
determination on a motion for summary disposition. UAW v Central Mich Univ Trustees, 295
Mich App 486, 493; 815 NW2d 132 (2012). “In reviewing a motion for summary disposition
pursuant to MCR 2.116(C)(5), this Court must consider the pleadings, depositions, admissions,
affidavits, and other documentary evidence submitted by the parties.” Id.
        MCR 2.201(B) provides that, generally, “[a]n action must be prosecuted in the name of
the real party in interest.” Generally, “the standing inquiry focuses on whether a litigant is a
proper party to request adjudication of a particular issue and not whether the issue itself is
justiciable.” Lansing Sch Educ Ass’n v Lansing Bd of Educ, 487 Mich 349, 355; 729 NW2d 686
(2010) (internal quotation makes and citation omitted). Plaintiff argues that Fraser, as Joseph’s
conservator and guardian, owed her a fiduciary duty as Joseph’s spouse and heir. We do not
agree that Fraser owed plaintiff a fiduciary duty pursuant to his role as Joseph’s guardian and
conservator. Fraser owed a duty to his ward, Joseph, a protected individual. Plaintiff, Joseph’s
spouse, was owed no fiduciary duty.

        Fraser was a public administrator appointed as guardian and conservator. MCL
700.1104(e) provides that a guardian and conservator is a fiduciary. As such, Fraser was a
fiduciary. However, plaintiff is not correct in her assertion that a fiduciary generally owes a duty
to any and all interested persons,2 and can be subject to claims from all interested persons. To
support her claim, plaintiff relies on MCL 700.1212(1). MCL 700.1212(1) defines a fiduciary:
“[a] fiduciary stands in a position of confidence and trust with respect to each heir, devisee,
beneficiary, protected individual, or ward for whom the person is a fiduciary.” (Emphasis


1
 Plaintiff’s complaint included six counts total; only the counts against defendants are at issue
on appeal.
2
  “ ‘Interested person’ or ‘person interested in an estate’ includes, but is not limited to, the
incumbent fiduciary; an heir, devisee, child, spouse, creditor, and beneficiary and any other
person that has a property right in or claim against a trust estate or the estate of a decedent, ward,
or protected individual . . . .” MCL 700.1105(c).



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added.) Plaintiff interprets MCL 700.1212(1) as meaning that a fiduciary owes a relationship to
each heir, protected individual, and ward. This is not correct. The statute does not create a duty,
it merely defines a fiduciary relationship as it may relate to any one of the listed persons.
Similarly, MCL 700.1308(1) states that “violation by a fiduciary of a duty the fiduciary owes to
an heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary is
a breach of duty.” (Emphasis added.) Plaintiff, once again, interprets this to mean that violation
of a fiduciary duty to any of the listed persons constitutes a breach of duty by any fiduciary;
however, the statute states “or,” and is not intended to create a duty from a fiduciary to all of the
listed persons.

        Plaintiff seems to misunderstand and misinterpret Michigan law on this issue. Plaintiff,
in the lower court and on appeal, placed little emphasis on Fraser’s role as a guardian and
conservator, as opposed to a personal representative. Plaintiff argued that either role established
that defendant was a fiduciary to plaintiff. However, the specific role to which Fraser was
assigned is critically important in determining what duty Fraser owed and to whom Fraser owed
a duty. A personal representative is responsible for different duties and to different parties than a
guardian or conservator. MCL 700.5314 defines the powers and duties of a guardian. A
guardian is responsible for the “ward’s care, custody, and control . . . .” (Emphasis added.)3
Nothing in the statute provides any kind of fiduciary duty by the guardian to an heir, spouse, or
other interested person. In contrast, MCL 700.3701 through MCL 700.3722 details the duties of
a personal representative. The duties of a guardian are distinct from a personal representative.
Plaintiff refuses to acknowledge this distinction, and insists that all fiduciaries owe a duty to all
interested persons, which is simply not correct.

        In addition, we agree with defendants and the trial court that Appollinari v Johnson, 104
Mich App 673; 305 NW2d 565 (1981) supports a holding that plaintiff lacks standing. In
Appollinari, this Court considered a lawsuit brought by the plaintiff beneficiary. Id. at 674. The
plaintiff beneficiary claimed that the defendant trustee had fraudulently obtained possession of
money held in trust for the plaintiff beneficiary. Id. The Court held, “the beneficiary of a trust
may not maintain an action at law against third persons where the trustee is entitled to do so.
However, where the trustee improperly refuses or neglects to bring suit, the beneficiary may sue
in equity.” Id. at 675-676 (citations omitted). The Court concluded that the plaintiff
beneficiary’s claim failed for lack of standing, and further opined that if the defendant trustee
was incapable of taking action, “the proper plaintiff would have been a guardian appointed to act
on her behalf.” Id. at 676. Appollinari correctly stands for the proposition that not every
interested person or beneficiary in a matter has standing to bring a claim. As the Court
explained, the trustee was the proper person to bring a claim, not the beneficiary, who was
simply an interested person. Id. at 675-676. By analogy, in this case, only a personal
representative for Joseph’s estate could bring a claim against defendant on behalf of Joseph for
breach of fiduciary duty. See MCL 700.3703(3). Heirs to the estate, who are interested persons
generally, are not the proper party to bring a claim. MCL 700.1105(c); see Appollinari, 104
Mich App at 675-676. If plaintiff wanted to bring a claim against defendants for breach of


3
    “ ‘Ward’ means an individual for whom a guardian is appointed.” MCL 700.1108(a).


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fiduciary duty to Joseph, she would have needed to open an estate and appoint a personal
representative, which she did not. Plaintiff also attempts to argue that because Fraser improperly
refused or neglected to bring a lawsuit, a beneficiary can sue. Appollinari, 104 Mich App at 675-
676. This argument is absolutely incorrect because Fraser, as plaintiff is aware, is not the
personal representative of Joseph’s estate, and would not have standing to bring such a claim.
Therefore, he has not and cannot refuse or neglect to bring a lawsuit.

        Plaintiff relies on Shoaff v Woods (In re Baldwin Trust), 274 Mich App 387; 733 NW2d
419 (2007) to support her position. This Court held that a personal representative did not owe a
fiduciary duty to a creditor of the estate. Id. at 401. The personal representative owed a
fiduciary only to the decedent’s heirs. Id. Plaintiff argues unsuccessfully that because a personal
representative owes a decedent’s heirs a duty, a guardian or conservator also owes a decedent’s
heirs a duty. This disregards the law on this matter and generalizes the narrow holding made by
the In re Baldwin Trust Court. A personal representative is not synonymous with guardian and
conservator. The trial court correctly found that In re Baldwin Trust is distinguishable from the
current case.

        We further hold that plaintiff does not have standing to assert a claim on behalf of Joseph
pursuant to MCL 700.3703(3), which provides that “a personal representative of a decedent
domiciled in this state at death has the same standing to sue and be sued in the courts of this state
and the courts of another jurisdiction as the decedent had immediately prior to death.” Because
plaintiff is not Joseph’s personal representative, she lacks standing to sue on his behalf. See also
MCR 2.201(B)(1).4

        In her brief on appeal, Plaintiff claims that MCL 700.1308(2) “gives an ‘interested
person’ standing to challenge a breach of fiduciary duty.” MCL 700.1308(2) states, “In response
to an interested person’s petition or on its own motion, the court may at any time order a
fiduciary of an estate under its jurisdiction to file an accounting. After due hearing on the
accounting, the court shall enter an order that agrees with the law and the facts of the case.” This
statute expressly states that an interested person may request an accounting from the court. It
does not, in any way, suggest that an interested person has general standing against a defendant
for breach of fiduciary duty.5


4
  Defendants argue and the trial court found that MCL 600.2922 also provides guidance on this
issue. MCL 600.2922 states that a personal representative is the only individual who has
capacity to assert a claim in instances of wrongful death. While we recognize, as plaintiff
argues, that plaintiff did not bring a claim for wrongful death, we hold that MCL 600.2922, by
analogy, further supports the proposition that plaintiff, who is not a personal representative, does
not have standing to bring a claim on Joseph’s behalf.
5
 We further note that while plaintiff, as an interested person, may have had the ability to request
an accounting, surcharge, or indemnification of a conservator, she did not do so. See MCL
700.5430, MCL 700.5415, MCL 700.1308(2). Ability to request such actions from a conservator
does not, by itself, show that a conservator owes a fiduciary duty to all interested persons,
despite plaintiff’s claims.


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       Defendants request that sanctions should be awarded for legal expenses incurred by
defendants because plaintiff’s claim is frivolous and meritless. Pursuant to MCR 7.216:

               The Court of Appeals may, on its own initiative or on the motion of any
       party filed under MCR 7.211(C)(8), assess actual and punitive damages or take
       other disciplinary action when it determines that an appeal or any of the
       proceedings in an appeal was vexatious because
          (a) the appeal was taken for purposes of hindrance or delay or without any
       reasonable basis for belief that there was a meritorious issue to be determined on
       appeal . . . .

We do not agree that sanctions are warranted pursuant to MCR 7.216 because there is no
indication that plaintiff appeals for purposes of delay, or that plaintiff was without any
reasonable basis for belief that there was a meritorious issue to be determined. While we hold
that plaintiff’s claim has not prevailed, we do not agree that plaintiff’s claim was so frivolous to
justify sanctions.6

       Affirmed. Defendants, the prevailing parties, may tax costs. MCR 7.219.

                                                             /s/ Pat M. Donofrio
                                                             /s/ Karen M. Fort Hood
                                                             /s/ Douglas B. Shapiro




6
  Defendants also argue that, in the alternative, this case could be affirmed because plaintiff
lacked subject matter jurisdiction, which is vested solely with the probate court, and because
summary disposition was proper pursuant to MCR 2.116(C)(6) and MCR 2.116(C)(7). Because
we conclude that plaintiff lacked standing to bring this action pursuant to MCR 2.116(C)(5), we
need not address defendants’ additional arguments.


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