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STATE OF MICHIGAN 

COURT OF APPEALS 

MARK L. RUGIERO, 

 Plaintiff-Appellee, 

UNPUBLISHED 

August 30, 2016 

v No. 325254, 325257 

Wayne Circuit Court 

GEORGE R. LUBIENSKI, and 

CHRISTOPHER B. KROLL 

LC No. 12-011723-CZ 

 Defendants, 

and 

PAUL M. LUBIENSKI 

 Defendant-Appellant. 

Before: RONAYNE KRAUSE, P.J., and SAWYER and STEPHENS, JJ. 

RONAYNE KRAUSE, P.J. (dissenting) 

 I respectfully dissent. I would find the central problem in this matter to be serious 

vagueness in plaintiff’s complaint. Very generally, plaintiff alleges that defendants exercised 

undue influence over the decedent, LeRoy Pecar, and thereby caused plaintiff to be disinherited 

under the last revision to the decedent’s trust, but he did not clearly articulate precisely what 

cause of action he sought to advance. Both parties contend that the trial court improperly 

transferred the case to the Wayne County Probate Court under MCR 2.227 for lack of subject 

matter jurisdiction. It appears to me that the trial court’s decision, and the majority’s affirmance, 

are based on guesswork. Parties may stipulate to facts, and I believe that the parties have at least 

nominally done so here, sufficient to narrow down what cause of action plaintiff could possibly 

be pursuing. I would vacate the trial court’s decision and remand for the parties and the trial 

court to properly establish plaintiff’s cause of action, after which the trial court may reexamine 

the jurisdictional issue. 

 The Pecar Family Trust was executed on November 6, 2007. The decedent, grantor of 

the Pecar Family Trust, died testate on November 19, 2011. Attorney Christopher Kroll drafted 
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decedent’s Last Will and Testament and the Pecar Family Trust.1

 Attorneys George R. 

Lubienski (George) and Paul M. Lubienski (defendant), who are also father and son, were named 

as successor trustees. The Trust was amended four times before the decedent’s death; in relevant 

part, one of those amendments changed the distribution of Trust assets to give one-third each to 

George, defendant, and plaintiff. Decedent executed the fourth and last amendment on February 

23, 2010, which disinherited plaintiff and left all residuary property to George and defendant. 

 Plaintiff learned that he was disinherited by decedent on January 10, 2012, after visiting 

the office of George and defendant. After being denied a petition for decedent’s estate to be 

probated and for the appointment of a personal representative in probate court, plaintiff filed his 

complaint in this case alleging, in relevant part, undue influence.2 The trial court sua sponte

noticed a hearing as to transferring the undue influence claim to probate court for lack of subject 

matter jurisdiction. Both parties objected and argued that the circuit court had concurrent 

jurisdiction with the probate court under MCL 700.1303(1)(a), (g), and (h) to determine property 

rights, impose a constructive trust, and hear and decide a claim regarding the return of property 

from a fiduciary or trustee. The court disagreed and held that plaintiff’s undue influence claim 

fell within the exclusive jurisdiction of the probate court under MCL 700.1302(b)(iv) and (v). It 

therefore transferred the undue influence claim to probate court without costs and subsequently 

denied reconsideration of that order. Both parties contend that the trial court erred. 

 Subject matter jurisdiction is a matter that can be raised at any time, and indeed a court 

itself not only may, but must sua sponte question its own jurisdiction to hear a matter. Smith v 

Smith, 218 Mich App 727, 729-730; 555 NW2d 271 (1996); Yee v Shiawassee Co Bd of 

Comm’rs, 251 Mich App 379, 399; 651 NW2d 756 (2002). Courts have subject matter 

jurisdiction over kinds of proceedings, and whether a specific case is of a kind that the court may 

hear depends on the substance, rather than the labels, of the allegations in the complaint. Joy v 

Two-Bit Corp, 287 Mich 244, 253; 283 NW 45 (1938); Neal v Oakwood Hospital Corp, 226 

Mich App 701, 707; 575 NW2d 68 (1997); Manning v Amerman, 229 Mich App 608, 613; 582 

NW2d 539, 541 (1998). We review de novo a court’s assessment of its subject matter 

jurisdiction. Etefia v Credit Techs, Inc, 245 Mich App 466, 472; 628 NW2d 577 (2001). 

 “The interpretation and application of the court rules, like the interpretation of statutes, is 

[also] a question of law that is reviewed de novo on appeal.” Colista v Thomas, 241 Mich App 

529, 535; 616 NW2d 249 (2000). Parties may stipulate to facts, but they cannot stipulate to law. 

In re Finlay Estate, 430 Mich 590, 595-596; 424 NW2d 272 (1988). Consequently, although the 

parties’ unanimity as to a particular point of law may carry a great deal of weight, their 

agreement is not dispositive. 

 

1

 The trial court granted summary disposition in Kroll’s favor, and that order is not presently 

under appeal. 

2

 Plaintiff also alleged “tortious interference with inheritance,” a theory that the trial court 

concluded was not recognized in Michigan and dismissed. That dismissal is likewise not at issue 

in this appeal. 
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 Circuit courts are courts of general jurisdiction, they therefore have subject matter 

jurisdiction by default unless explicitly deprived thereof by law or unless another court is given 

exclusive jurisdiction by law. Farmers Ins Exch v South Lyon Community Schools, 237 Mich 

App 235, 241; 602 NW2d 588 (1999). In contrast, although probate courts are established by 

Michigan’s constitution, their jurisdiction is entirely provided by statutes. Const 1963, art 6, § 

15; Manning, 229 Mich App at 611. Exclusive jurisdiction over enumerated matters is given to 

the probate courts by MCL 700.1302, and enumerated concurrent jurisdiction is given to the 

probate courts by MCL 700.1303. The purpose of concurrent jurisdiction is to simplify estate 

proceedings “by consolidating the probate and other related actions or proceedings in the probate 

court.” MCL 700.1303(3). “Where the exercise of a concurrent jurisdiction is recognized, 

whether it will be exercised or declined rests largely in the discretion of the court[.]” Fid Mut 

Life Ins Co v Blain, 144 Mich 218, 220; 107 NW 877 (1906) (quotation omitted). 

 The trial court concluded that the instant matter was within the exclusive jurisdiction of 

the probate court pursuant to MCL 700.1302(b)(iv) and (v), which provides: 

The [probate] court has exclusive legal and equitable jurisdiction of all of the 

following: 

* * * 

(b) A proceeding that concerns the validity, internal affairs, or settlement of a 

trust; the administration, distribution, modification, reformation, or termination of 

a trust; or the declaration of rights that involve a trust, trustee, or trust beneficiary, 

including, but not limited to, proceedings to do all of the following: 

* * * 

(iv) Ascertain beneficiaries. 

(v) Determine a question that arises in the administration or distribution of a trust, 

including a question of construction of a will or trust. 

The parties, however, contend that the trial court erred. 

 As noted, I find that plaintiff’s complaint is unfortunately vague. The complaint does 

clearly seek money damages on the grounds of undue influence, but it does not articulate 

plaintiff’s theory of how legally to arrive at that recovery on the basis of the alleged impropriety. 

Plaintiff’s brief on appeal similarly does not quite manage to articulate a theory of recovery, 

although it strongly implies that plaintiff seeks the equitable imposition of a constructive trust. If 

so, circuit courts are generally not deprived of their equitable jurisdiction over the imposition of 

a constructive trust. MCL 700.1303(1)(j); Burgess v Jackson Circuit Judge, 249 Mich 558, 564; 

229 NW2d 481 (1930); see also Thurn v McAra, 374 Mich 22; 130 NW2d 887 (1964). Both 

parties contend that there is no dispute as to the Pecar Family Trust itself, and, again only by 

implication, seemingly argue that plaintiff’s claim is against defendants personally for wrongs 
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allegedly committed against plaintiff.

3

 Whatever the merits of that claim might be, a personal 

matter of such a sort generally is outside the probate court’s jurisdiction. See In re Winter’s 

Estate, 297 Mich 294, 300-301; 297 NW 497 (1941). 

 As noted, parties cannot stipulate to the law. They can, however, stipulate to the facts. 

Certainly, in the absence of anything more competently articulated in the complaint, I conclude 

that there is no reason why the parties cannot stipulate to the precise nature of plaintiff’s claims. 

It is for the courts to assess the legal implications of any such claims. However unusual such an 

agreement might be, if the parties wish to make a “distinct, formal, solemn admission,” Ortega v 

Lenderink, 382 Mich 218, 222-223; 169 NW2d 470 (1969), that plaintiff’s claim against 

defendants is a personal claim against them for wrongs they committed against him personally 

and his recovery, if any, is on a theory of imposing a constructive trust due to their alleged undue 

influence; I find no reason why the courts should not be bound to treat that agreement as a fact. 

If that is the case, then the trial court erred in concluding that it lacked subject matter 

jurisdiction. 

 The above is, however, necessarily theoretical. I can only presume, based on “reading 

between the lines,” that I have correctly determined the nature of the action. However, I find no 

indication that the trial court did so. Therefore, I would hold that the trial court’s order must be 

vacated and the matter remanded for the parties to establish with certainty, precisely of what the 

nature of the cause of action actually consists. The parties agree, however, that they are not 

seeking to establish who is a rightful beneficiary of the Pecar Family Trust, and based on their 

arguments, I can imagine few other possibilities. Nevertheless, the trial court is the proper venue 

to make that determination. After having done so, the trial court should then reconsider the 

jurisdictional question consistent with this opinion. I would therefore need not reach the issue of 

whether the trial court should have imposed costs. 

/s/ Amy Ronayne Krause 

 

3

 I note that as an equitable remedy, a constructive trust can favor a person with an equitable 

claim to some property despite never having had a legal claim thereto. See Bruso v Pinquet, 321 

Mich 630, 639; 33 NW2d 100 (1948), quoting from 3 Pomeroy on Equity Jurisprudence 3d, § 

1053. Consequently, plaintiff need not necessarily establish that he was a beneficiary under the 

Pecar Family Trust.