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In re Estate of Reilly

October 11, 2007

IN RE ESTATE OF DOROTHY O. REILLY; ROBERT W. ALVORD, APPELLANT.


Appeal from the Superior Court of the District of Columbia (ADM-177-02) (Hon. A. Franklin Burgess, Jr., Trial Judge).

The opinion of the court was delivered by: Kramer, Associate Judge

Argued February 6, 2007

Before GLICKMAN and KRAMER, Associate Judges, and KING, Senior Judge.

Appellant Robert Alvord is the personal representative of the estate of Dorothy Reilly and trustee of the Residence Trust, a part of that estate. Appellees John Reilly and Margaret Reilly Heffern have sued Mr. Alvord in his capacities as representative of the estate and trustee of the Residence Trust, as well as in his individual capacity, claiming the right to the Residence Trust. The trial court granted a preliminary injunction, restraining Mr. Alvord from drawing on funds in the Residence Trust to pay for the costs of litigation. Mr. Alvord filed this interlocutory appeal, arguing that the Reillys failed to establish the threat of irreparable injury, a substantial probability of success on the merits, or that the balance of harms supported granting the injunction. We disagree and affirm.

I. Background

The appellees are the children of Gerard Reilly, a former Chief Judge of this court, and his first wife Eleanor, who died in 1980. Dorothy Reilly, was Gerard Reilly's second wife. When Eleanor died, Gerard Reilly became the owner of their residence located at 3515 Lowell Street, Northwest. Upon his death in 1995, one half interest in this residence was devised to Dorothy, and the other half was devised to the appellees in equal shares, with the restriction that the right of partition could not be exercised against Dorothy for one year.

In 1998, Dorothy created two trusts: the Residence Trust and the Revocable Trust. The Residence Trust consisted entirely of Dorothy's one-half interest in the Lowell Street property, and the appellees were its beneficiaries. The Revocable Trust was funded by Dorothy's personal property, and its ten beneficiaries are her family members living in Minnesota, Wisconsin, Colorado, and Maine. The Revocable Trust's purpose is to assist its beneficiaries with their educational expenses.

Dorothy revised the Residence Trust in 1999, removing the appellees as beneficiaries and replacing them with the Revocable Trust, effectively directing all of the property to her own relatives. Dorothy died in 2002. Mr. Alvord, who drew the wills of both Gerard and Dorothy Reilly, and who was a co-trustee of both the Residence and Revocable Trusts, was appointed executor of Dorothy's estate.

In 2003, the appellees filed suit against the Estate, alleging breach of contract to devise real estate. Count I of their Complaint alleged that there existed an oral agreement between Gerard and Dorothy Reilly by which Gerard Reilly agreed to convey one-half interest in the residence to Dorothy in consideration for her promise to devise her interest to his children. Count II of the Complaint was for recovery of fair rental value of the property; Count III alleged intentional interference with inheritance; and Count IV sought partition of the property. Mr. Alvord answered with a counterclaim for abuse of process. Count IV became moot when the appellees agreed to the sale of the property, with half of the proceeds going to the appellees and the other half going to the disputed Residence Trust. The appellees subsequently filed a separate action against Mr. Alvord in his personal capacity alleging malpractice and breach of fiduciary duty.

Thereafter, Mr. Alvord moved for summary judgment on Counts I and III of the complaint against the estate. The trial court granted the motion with respect to Count III, holding that the District of Columbia does not recognize the tort of intentional interference with inheritance. It denied the motion, however, with respect to Count I, the claim based upon breach of the oral agreement. The court held that the Statute of Limitations did not dictate summary judgment on this claim because (1) an ambiguity in the language of a tolling agreement between the parties made summary judgment inappropriate, and (2) the court construed the appellees' claim as seeking the imposition of a constructive trust, which exempts the claim from the Statute of Limitations. Dealing next with Mr. Alvord's Statute of Frauds defense to Count I, the court held the defense failed because there was part performance by Dorothy, and also because the Statute of Frauds does not apply to a constructive trust.

Thereafter, appellees filed a motion for a protective order to freeze the assets within the Residence Trust and to compel Mr. Alvord to return monies already withdrawn for litigation expenses. At the time the parties submitted their briefs, the Residence Trust held $882,284, and the Revocable Trust held $72,741. The court treated the motion as one for a preliminary injunction. It granted it in part, and denied it in part, holding that assets already paid out in attorneys' fees could not be recovered, but enjoining any further dissipation of Residence Trust funds for litigation expenses. This appeal followed.

II. Discussion

There are four criteria to be considered by a trial court when granting a preliminary injunction.

A proper exercise of discretion requires the trial court to consider whether the moving party has clearly demonstrated (1) that there is a substantial likelihood he [or she] will prevail on the merits; (2) that he [or she] is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him [or her] from the denial of the injunction than will result to the defendant from its grant; and, ...


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