United States District Court, E.D. North Carolina, Southern Division
RADOSLAW ZEGLINSKI, individually and as attorney in fact; HEIRS OF KATARZYNA ZIENKIEWICZ; MIECZYSLAW ZIENKIEWICZ; CELINA ZEGLINSKA, and PRZEMYSLAW ZEGLINSKI, Plaintiffs,
DONNA POSEY PAZIUK, also known as Donna Posey; MATTHEW THOMPSON, Individually and as Attorney for Decedent George Paziuk; ANTHONY A. SAFFO, Individually and as Attorney for Decedent George Paziuk, and as Executor of Paziuk Estate, and Trustee of the George Paziuk Revocable Trust, and as Trustee of the Void or Voidable George Paziuk Marital Trust; BRED SCHARD CO., Trustee of George Paziuk Revocable Trust; and LAWRENCE S. CRAIGE, Guardian of the Estate of George Paziuk, Defendants.
W. FLANAGAN United States District Judge
citizens and residents of Poland,  are beneficiaries of the
estate of George Pazuik (âPaziukâ), a relative who died April
20, 2015, in Wilmington, North Carolina. Proceeding pro se,
they bring a variety of claims in complaint filed December 3,
2018, against Pazuik's widow, Donna Posey Paziuk
(âPoseyâ) and Bret Schardt (âSchardtâ), other beneficiaries
of the estate, together with three attorneys, Matthew
Thompson (âThompsonâ), a practitioner with Ward and Smith,
P.A., Anthony A. Saffo (âSaffoâ), of the Saffo Law Firm,
P.C., and Lawrence S. Craige (âCraigeâ), of Craige & Fox,
PLLC. These Wilmington, North Carolina based practitioners
were involved in the creation, maintenance, and/or settlement
of the complained about estate. A myriad of motions are now
before this court, including defendants' multiple motions
to dismiss and plaintiffs' motions for entry of default.
OF THE CASE
the complaint was not filed until December 3, 2018, the
genesis of this case on the court's docket relates back
to June 26, 2018, when plaintiff Radoslaw Zeglinski filed for
leave to proceed in forma pauperis (which motion was rendered
moot by plaintiff submitting the appropriate fees).
Plaintiffs' claims spring from dispute concerning
settlement of the Paziuk estate, particularly regarding
distribution of the George Paziuk Revocable Trust
(“revocable trust”). Plaintiffs accompanied their
complaint with a plethora of documentary evidence ranging
from documents governing the Paziuk estate, to correspondence
between plaintiffs and defendants, to state-court orders
regarding Paziuk and the estate.
defendant has raised for decision a motion to dismiss.
Defendants Saffo, Thompson, and Posey separately move
pursuant to Federal Rule of Civil Procedure 12(b)(6) for
dismissal arguing plaintiffs have failed to state a claim and
that, if a claim is stated, which they collectively deny, it
is for reformation of a revocable trust, which is barred by
the statute of limitations. Defendants Craige and Schardt
rely on unique grounds for dismissal while jointly
maintaining that plaintiffs' claims are barred by the
statute of limitations and statute of repose, also pursuant
to Rule 12(b)(6). All defendants, save Posey, argue they have
received insufficient service of process, with defendants
Saffo, Thompson, and Craige moving for dismissal of
plaintiffs' complaint pursuant to Rule 12(b)(5) on said
defendant relies on personal affidavit, with defendants
Thompson and Craige also submitting affidavits of assistants
that work at their respective law firms. Defendant Craige
also relies on January 31, 2013 state court order modifying
the guardianship of Paziuk, removing guardianship of
Paziuk's person, but maintaining defendant Craige as
guardian of Paziuk's estate, (Jan. 31, 2013 order (DE
50-1) at 4), as well as final account submitted to state
court for the guardianship estate of Paziuk, (DE 50-2).
Defendant Schardt relies on his renunciation of right to
serve as a co-trustee of the revocable trust, as was filed in
state court. (DE 66-1).
February 28, 2019, plaintiffs moved for entry of default
against defendants Craige and Schardt pursuant to Rule 55(a).
Twelve days later, discovery was stayed pending the
court's address of the instant motions to dismiss
submitted at that time. Nine days later, Defendant Craige has
moved for leave to file response to complaint, and defendant
Schardt also seeks an extension of time to file answer.
Plaintiffs filed response in opposition to defendants Saffo,
Thompson, and Posey's motions to dismiss. The rest of
defendants' motions have, however, not been responded to.
OF THE FACTS
of the facts starts with creation of the revocable trust. The
issues disputed came to life upon Pazuik's death. The
court's summary of pertinent events, from the trust's
creation to Pazuik's death, rests on plaintiffs'
complaint and documents appropriately
26, 1998: Revocable trust created by Pazuik
a resident of New Hanover County, North Carolina, created the
revocable trust at issue March 26, 1998. No. copy of the
original trust agreement is before the court; however, this
is of no moment to the analysis following.
12, 2008: Amendment to and restatement of the revocable trust
(“September 12, 2008 Restatement”)
years after its inception, the revocable trust was amended
and restated in its entirety on September 12, 2008. The
September 12, 2008 Restatement is lodged on the docket at
entry 16-11 at pages 1 - 37. It references Exhibits “A,
” “B, ” and “C.” Exhibit A
purports to be a list of the property of the revocable trust.
This exhibit was not filed with the court. Exhibit B to the
September 12, 2008 Restatement purports to identify
individuals receiving specified distributions. There is no
Exhibit B effective September 12, 2008 in the court's
file. Exhibit C purports to be a list of
charitable organizations to receive distributions. This
exhibit to the September 12, 2008 Restatement, bearing the
same September 12, 2008 date, was made a part of the record.
the September 12, 2008 Restatement, once Paziuk died, the
revocable trust's assets were to be distributed in three
1. Pursuant to Article VI, Section 1(A) of the September 12,
2008 Restatement, the trustee would distribute a portion of
the trust's assets to individuals to be named in Exhibit
2. Pursuant to Article VI, Section 1(B) of the September 12,
2008 Restatement, the trustee would distribute another
portion of the trust's assets to certain charities named
in Exhibit C thereto; and
3. Pursuant to Article VI, Section 2 of the September 12,
2008 Restatement, the trustee would distribute the remainder
to plaintiffs and two others.
September 12, 2008 Restatement additionally provided that
“[a]t such time the initial Trustee [Paziuk] no longer
serves as Trustee, and if the Grantor [Paziuk] has not, or
cannot, act to appoint a successor trustee, then Anthony A.
Saffo, Esq. and Bret Schardt shall become Trustees, and shall
serve together as Co-Trustees.” (September 12, 2008
Restatement (DE 16-11) at 25).
16, 2011: Paziuk adjudicated incompetent Guardians appointed
including defendant Craige
2011, Paziuk had a stroke. After the stroke, the General
Court of Justice, Superior Court Division, for New Hanover
County (“state court”) appointed two guardians:
one for Paziuk's person, LaVaughn Nesmith, and another
for Paziuk's estate, defendant Craige.
29, 2012: Defendant Schardt renounces trusteeship
29, 2012, defendant Schardt filed with the state court
renunciation of right to serve as a co-trustee of the
revocable trust. (See DE 66-1 ¶¶ 5, 7
(“Bret Schardt is an employee of RBC Wealth Management
. . . . That due to RBC's company policy Bret Schardt
wishes to renounce his right to serve as a successor
Co-Trustee of the Paziuk Trust.”); id. ¶
8 (“at no time since George Paziuk was adjudicated
incompetent did Bret Schardt ever accept his trusteeship over
the Paziuk Trust, nor perform any duties . . . as a trustee .
. . .”).
15, 2012: Premarital agreement between Pazuik, with defendant
Craige acting on Paziuk's behalf, and defendant Posey
(“June 15, 2012 premarital agreement”)
2012, defendant Craige petitioned the state court to
authorize Paziuk's estate to pay for the wedding of
Paziuk to Posey. In the petition, defendant Craige also
indicated that Paziuk would have an attorney prepare a
premarital agreement, which defendant Craige would sign on
behalf of Paziuk's estate. Defendant Craige wrote to
plaintiff Katarzyna Zeinkiewicz May 25, 2012, enclosing for
her review the petition for disbursement and notice of
hearing regarding the petition. The state court granted the
June 15, 2012 premarital agreement incorporated the September
12, 2008 Restatement and provided that the September 12, 2008
Restatement “shall take priority and control over any
rights and interests in property of PAZIUK which might
otherwise become vested in [defendant Posey] by reason of her
marriage to PAZIUK.” (June 15, 2012 premarital
agreement (DE 16-14) at 10-11; see also Compl. (DE
16) ¶¶ 27-28).
premarital agreement additionally provided that
“[n]either party shall hereafter secure any credit card
which the other party is authorized to use nor shall either
party use or make changes on any credit account in the other
party's name, and neither party shall be liable in any
manner for debts created through the use of a credit card or
charge account in the other party's name.” (June
15, 2012 premarital agreement (DE 16-14) at 11; see
also Compl. (DE 16) ¶ 31).
31, 2013: Paziuk guardianship modified
January 2013, the guardianship of Paziuk's person was
modified, restoring to Paziuk rights to make all decisions
that would otherwise be made by a guardian of his person.
(See Jan. 31, 2013 order (DE 50-1)). The court held
that “Paziuk has recovered since the time of
adjudication so that he can make decisions about and
communicate his needs regarding all matters other than those
regarding his estate.” (Id. at 3). The order
additionally provided defendant Craige would continue as
guardian of the Paziuk estate. (Id.).
7, 2013: Amendment to the revocable trust (“May 7, 2013
7, 2013, Paziuk amended the revocable trust, creating a
marital trust. (May 7, 2013 Amendment (DE 16-11) at 38-44).
Changes made to the September 12, 2008 Restatement through
the May 7, 2013 Amendment were made by George Paziuk at the
time when he was adjudicated to be incompetent. Under the May
7, 2013 Amendment, and a September 25, 2014 modification
reflecting a fully executed Exhibit B thereto,  once Paziuk died,
the trust's assets were to be distributed in four steps.
first and second steps remain as sequenced in the September
12, 2008 Restatement. The third step previously described,
where the trustee would distribute the remainder to
plaintiffs and two others lost its order in the May 7, 2013
Amendment. This became the fourth and final step where the
parties agree, after the first and second steps, the trustee
must distribute $6, 000, 000.00 to the marital trust for
defendant Posey before distributing any remainder to
Schardt, defendant Saffo, who served as Paziuk's
attorney, executor, and trustee of the Paziuk estate and
trusts, and defendant Thompson, who drafted the May 7, 2013
Amendment, were aware Paziuk's competency had not been
restored. Plaintiffs allege these defendants knew defendant
Craige was a necessary party to any attempt to change the
revocable trust and that defendant Craige as guardian had a
duty to protect the assets of Paziuk. It is also alleged that
defendant Craige intentionally was not notified concerning
the May 7, 2013 Amendment.
25, 2014: Exhibit B to the September 12, 2008
September 25, 2014, Exhibit B, which identifies by name those
who are to receive specified distributions, as directed by
Article VI, Section 1(A) of the September 12, 2008
Restatement (and as not altered by the May 7, 2013
Amendment), apparently was modified. The exhibit bearing this
date provides for cash distributions totaling in excess of
$3, 000, 000.00 to 17 individuals. Plaintiffs are to receive
$1, 500, 00.00, to be distributed equally among them and two
others not named as plaintiffs in the case. Defendant Schardt
also is among those listed to receive a distribution, in his
case, of the sum of $100, 000.00.
20, 2015: Paziuk died
April 20, 2015, Paziuk died. Defendant Saffo, as trustee,
began distributing the trust's assets. Defendant Posey
started to transfer money out of the marital trust. On June
12, 2015, defendant Craige filed in state court the final
account for the guardianship estate.
a July 12, 2016 meeting with defendants Saffo and Thompson,
plaintiff Radoslaw Zeglinski was informed of the May 7, 2013
Amendment. He received a partial distribution from the
estate. Plaintiffs also appear to allege that defendant Posey
accrued $22, 497.95 in credit card debt after Pazuik's
death, which was paid for by the Paziuk estate. This is in
alleged contravention of the June 15, 2012 premarital
agreement. Plaintiffs also allege that defendant Posey lied
to Paziuk during his lifetime, stating his aunt had died and
that he had no living relatives. Plaintiffs contend, too,
that defendant Posey was abusive to Paziuk during his
lifetime. On March 7, 2018, the state court granted motion
made by plaintiffs' then attorney Lonnie Merritt
(“Merritt”), wherein it was represented to the
state court that plaintiffs sought order directing defendant
Saffo to make distribution to plaintiffs and to close
seek the May 7, 2013 Amendment, which created the marital
trust, to be declared void. They also seek the $6, 000,
000.00 transferred to the marital trust to be returned and a
constructive trust created on their behalf. It appears they
seek Exhibit B to the September 12, 2008 Restatement, dated
September 25, 2014, to be declared void even though it
provides for a $1, 500, 00.00 distribution in equal shares to
them and two others, ostensibly because it also provides for
a $100, 000.00 distribution to defendant
Schardt. They also seek damages to be paid to each
plaintiff in the amount of $3, 000, 000.00 and request that
“the Premarital Agreement along with all Exhibits
thereto and any other documents being held by the Clerk of
Court should now be removed from seal and become part of ...