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Zeglinski v. Paziuk

United States District Court, E.D. North Carolina, Southern Division

August 15, 2019

RADOSLAW ZEGLINSKI, individually and as attorney in fact; HEIRS OF KATARZYNA ZIENKIEWICZ; MIECZYSLAW ZIENKIEWICZ; CELINA ZEGLINSKA, and PRZEMYSLAW ZEGLINSKI, Plaintiffs,
v.
DONNA POSEY PAZIUK, also known as Donna Posey, and 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, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendant Saffo's motion for reconsideration. (DE 73). No. opposition was filed by plaintiffs, and the time to do so has expired. In this posture, the issues presented are ripe for ruling. For reasons noted, the motion is granted.

         STATEMENT OF THE CASE

         Plaintiffs, citizens and residents of Poland, [1] are beneficiaries of the estate of George Pazuik (“Paziuk”), a relative who died April 20, 2015, in Wilmington, North Carolina. Proceeding pro se, they brought a variety of claims in complaint filed December 3, 2018, against multiple parties, including Pazuik's widow, Donna Posey Paziuk (“Posey”), and Paziuk's attorney, executor, and trustee of the Paziuk estate and trusts, Anthony A. Saffo (“Saffo”), of the Saffo Law Firm, P.C.

         All defendants moved to dismiss plaintiffs' complaint, with defendant Saffo arguing in part that plaintiffs failed to state a claim, and that, if a claim is stated, it is for reformation of a revocable trust. The court on its own initiative identified a claim of breach of fiduciary duty, and without briefing on this claim, allowed this claim to proceed as to defendant Saffo by order issued May 24, 2019, also holding that plaintiffs had stated a claim against defendant Posey for undue influence, but dismissing all other claims and parties. More specifically as to defendant Saffo, the court held plaintiffs alleged a claim for breach of fiduciary duty against this defendant where plaintiffs have alleged in part that defendant Saffo was the trustee of the revocable trust to which plaintiffs were beneficiaries and defendant Saffo breached his fiduciary duty to plaintiffs by 1) allowing Pazuik to amend the George Paziuk Revocable Trust (“revocable trust”) when Paziuk had been adjudicated incompetent and 2) by failing to communicate with plaintiffs regarding the state of the trust.

         On June 21, 2019, defendant Saffo filed instant motion for reconsideration. As stated above, although this issue was not raised in original briefing, defendant Saffo now argues that the court should reconsider its May 24, 2019 order because, under North Carolina law, defendant Saffo, as trustee of the revocable trust, owed plaintiffs no fiduciary duties until Paziuk's death.

         STATEMENT OF THE FACTS

         The court incorporates by reference the statement of the facts providing in the court's May 24, 2019 order and includes the following facts as relevant to the resolution of the instant motion.

         Pazuik, a resident of New Hanover County, North Carolina, created the revocable trust at issue March 26, 1998. Twenty years after its inception, the revocable trust was amended and restated in its entirety on September 12, 2008 (“September 12, 2008 Restatement”). The September 12, 2008 Restatement states in part as follows:

The Granter does hereby reserve the right to amend, modify, or revoke the Trust Agreement in whole or in part, at any time and does hereby make and constitute this as a revocable trust. Any amendment, modification, revocation or termination pursuant to this Article must be in writing, signed by the Granter and acknowledged before a Notary Public or other person authorized to administer oaths, and delivered to the Trustee within the Grantor's lifetime. Upon any revocation of the Trust, the Trustee shall promptly pay or transfer to the Granter, or to his designee, such portion or all of the property then constituting the Trust Estate as he shall demand. Upon the death of the Granter, the Trust Agreement shall become irrevocable and may not thereafter be amended, revoked, or terminated except as elsewhere provided herein . . . .

(September 12, 2008 Restatement (DE 16-11) at 2-3).

         In 2011, Paziuk had a stroke and was adjudicated incompetent by the General Court of Justice, Superior Court Division, for New Hanover County. On May 7, 2013, Paziuk amended the revocable trust, creating a marital trust (“May 7, 2013 Amendment”). (May 7, 2013 Amendment (DE 16-11) at 38-44; see also id. at 42-44 (signature pages for May 7, 2013 Amendment of granter Paziuk, notary public, and trustee defendant Saffo)).

         DISCUSSION

         A. ...


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